The justices of the California Supreme Court: 2017 by the numbers

In part one of this series, we broke down the numbers of what types of cases the court heard, where they came from, and the how the court ruled. Today, we look at the numbers behind the justices' participation on the court in 2017.

Capital Census

The California Supreme Court's criminal law docket was dominated in 2017 by Briggs v. Brown, the constitutional challenge to Proposition 66, the voter initiative narrowly approved in the November 2016 election which provided that death penalty appeals should be concluded within five years. In a surprising ruling, the court held in August 2017 that Prop. 66 was constitutional, although the five-year time limit was construed as merely meaning that death penalty appeals should be decided as "expeditiously as is consistent with the fair and principled administration of justice." The court remained far from the five-year goal of Prop. 66 last year. The court's 11 death penalty cases last year averaged 3,506.73 days from appointment of counsel to oral argument (9.6 years), and another 87.82 days from argument to decision. Non-death criminal cases averaged 647.24 days from grant of review to argument, and 78.76 days from argument to decision.

There was little evidence last year that the Democratic appointees were pushing the court in a more liberal direction on death penalty cases. The court affirmed outright in nine of its 11 death penalty cases. It reversed in part on lesser charges while affirming the sentence in one more case and overturned the death penalty only once.

The Supreme Court decided more than twice as many death penalty cases in 2016 -- 24 in all -- affirming in 14, or 58.33 percent. The court reversed in part but affirmed the sentence in another four cases, reversed in part and overturned the sentence in four, and reversed outright twice. The previous year, the court affirmed outright in 52.94 percent of its death penalty decisions, reversed in part but affirmed the sentence in another 29.41 percent, and reversed in part overturning the sentence in 17.65 percent. In 2014, the court affirmed in 60.87 percent of its 23 death cases and reversed in part while affirming the sentence in 30.43 percent. The court reversed in part while reversing the sentence and reversed outright in each case each.

Author Attributes

Civil. Justice Carol Corrigan was the most frequent author of majority opinions in civil cases with nine. Justice Goodwin Liu spoke for the court seven times, followed by Justices Leondra Kruger and Ming Chin at six each, Justice Mariano-Florentino Cuéllar and Chief Justice Tani Cantil-Sakauye at five each, and now-retired Justice Kathryn Werdegar with 4. The chief justice averaged the longest majority opinions in civil cases at 36 pages, but this probably suggests that she assigned herself the most controversial cases. The remaining justices each wrote about the same length opinions -- Justice Cuéllar at 28 pages, Justice Liu at 24.29 pages, Justice Werdegar at 23 pages, Justice Corrigan at 22.33 pages, Justice Chin at 18.83 pages and Justice Kruger at 17.33 pages.

Justice Liu added three concurrences in civil cases, Justice Kruger wrote two and the chief justice wrote one. Justice Kruger wrote three dissents in civil cases. Justices Corrigan, Cuéllar and Chin wrote two apiece and Justice Werdegar wrote one.

Criminal. On the criminal side of the docket, Justices Corrigan and Kruger tied, each writing for the court seven times. Justices Chin and Cuéllar each wrote six majority opinions, Justices Liu and Werdegar wrote five each and the chief justice wrote four.

In criminal cases, Justices Kruger and Liu each wrote two concurrences, Justice Werdegar wrote one and the chief justice wrote one. Justice Liu dissented in five criminal cases. Justice Cuéllar dissented three times, the chief justice and Justice Kruger did so twice, and Justices Corrigan and Chin dissented once apiece.

Voting Vectors

One important measure we track to gauge a justice's influence on the Supreme Court is the percentage of cases, civil and criminal, in which he or she voted with the majority.

Civil. On the civil side in 2017, Chief Justice Cantil-Sakauye and Justice Chin led the court, each voting in the majority in 40 of the 41 civil cases they participated in, or 97.56 percent. Justice Werdegar was next, voting with the majority in 97.14 percent of her civil cases. Justices Cuéllar and Liu were tied, each voting with the majority in 92.86 percent of the court's civil cases, while Justice Corrigan was close behind at 92.68 percent. Justice Kruger was least often in the majority, voting with the majority in 90.48 percent of civil cases.

Criminal. On the criminal side, the result was flipped -- Justice Kruger led the court, voting with the majority in 95.24 percent of cases. Justices Corrigan and Chin were next, each voting with the majority in 92.86 percent of their criminal cases. Chief Justice Cantil-Sakauye voted with the majority in 88.1 percent of her criminal cases. Justice Werdegar did so in 87.88 percent of her cases. Justice Cuéllar voted with the majority in 85.71 percent of his criminal cases. Justice Liu was most frequently in dissent in criminal cases, voting with the majority 78.57 percent of the time.

Agreeing Adjudicators

Another way of approaching the same question is to track the percentage of cases in which each possible combination of justices agrees. At present, with the retirement of Justice Werdegar, the Supreme Court is evenly divided, with three justices appointed by Republican governors and three by Democrats (all three by Gov. Brown). But assessing where a court is likely to be ideologically isn't as simple as counting political affiliations of the appointing governor. Even a smaller wing of the court can exercise effective control if its justices are nearly always in agreement while a larger wing is divided. Partial agreement isn't good enough; an ideologically similar wing of the court inevitably loses influence when it's speaking through two or three opinions rather than signing onto a single opinion.

Civil. In 2017, the evidence suggests that Chief Justice Cantil-Sakauye and Justices Werdegar, Chin, Corrigan and sometimes Cuéllar formed a fairly cohesive central wing of the court in civil cases. Justices Werdegar and Cuéllar agreed in 97.14 percent of civil cases. The chief justice and Justice Werdegar agreed in 97.06 percent of civil cases. The chief justice agreed with Justice Chin in 95.12 percent of cases, and with Justice Corrigan 95 percent of the time. Justices Werdegar and Chin agreed in 94.12 percent of their cases.

Meanwhile, the eight combinations of Justices scoring lowest in civil case agreement all included at least one Democratic appointee -- Justices Cuéllar and Liu, 90.48 percent; Justices Corrigan and Liu, 90.24 percent; Chief Justice Cantil-Sakauye and Justice Liu, 90.24 percent; Justices Chin and Liu, 90.24 percent; Justices Kruger and Werdegar, 88.57 percent; Justices Corrigan and Cuéllar, 87.8 percent; Justices Kruger and Chin, 87.8 percent; and Justices Kruger and Cuéllar, 83.33 percent.

Criminal. Agreement rates on the criminal side of the docket are somewhat lower nearly across the board. Justices Corrigan and Chin led, agreeing in 97.62 percent of their criminal cases. Justice Corrigan agreed with the chief justice in 95.24 percent of their cases. The chief justice agreed with Justice Chin in 92.86 percent of criminal cases. Justice Kruger often joined the moderate center of the court in criminal cases, agreeing with the chief justice and with Justice Corrigan 90.48 percent of the time.

Just as we saw in civil cases, the eight lowest agreement rate combinations involved either one or two Democratic appointees: Justices Werdegar and Liu, 81.82 percent; Justices Kruger and Cuéllar, 80.95 percent; Justices Chin and Cuéllar, 80.95 percent; Justices Kruger and Liu, 78.57 percent; Chief Justice Cantil-Sakauye and Justice Cuéllar, 78.57 percent; Justices Chin and Liu, 78.57 percent; Justices Corrigan and Liu, 76.19 percent, and the chief justice and Justice Liu, 71.43 percent.

Lessons Learned

So what can we learn from the California Supreme Court's decision-making for 2017? First, despite increasing controversy about the lengthy Werdegar vacancy, the court seems to be coping so far with no reduction in its productivity.

Second, delays in processing cases continue to be a problem, with non-death cases routinely taking a year and a half to oral argument, and death penalty cases taking eight to 10 years to be argued.

Third, reports in 2015 and 2016 that the court might shift leftwards in death penalty cases seem to be premature, at least for now.

Fourth, largely because the Republican nominees' agreement rate tends to be somewhat higher, the court's moderate center has led the court so far -- Chief Justice Cantil-Sakauye and Justices Chin, Werdegar and either Cuéllar or Corrigan in civil cases, and the chief justice and Justices Chin, Werdegar and Kruger in criminal cases.

So far, the shift leftwards hasn't happened, but with Justice Werdegar in the dominant center on both sides of the docket, Gov. Brown's opportunity to name her successor promises to tell us a lot about where the court is likely to go in the next several years.