Working without Werdegar

On March 8, 2017, Justice Kathryn M. Werdegar of the California Supreme Court announced that she would retire from the court effective Aug. 31, 2017. As of Oct. 5, 2018, 576 days will have passed since that announcement, and Gov. Jerry Brown has still not nominated Justice Werdegar's successor. Even measuring from the day of Justice Werdegar's actual departure, Oct. 5 will be the 400th day since the court has had its full complement of seven permanent justices.

This is the longest vacancy in the California Supreme Court's history by a wide margin, surpassing the 275 days which passed between Justice Joyce Kennard's retirement and the swearing in of Justice Leondra Kruger. Before that, only 185 days passed between the retirement of Justice Carlos Moreno and Justice Goodwin Liu taking office as his successor.

California has a somewhat unusual system for dealing with vacancies not found in many state supreme courts or the U.S. Supreme Court. When there are fewer than seven permanent justices, a pro tem justice is appointed from the Court of Appeal. Unlike pro tem appointments to the Court of Appeal, pro tem justices to the Supreme Court do not sit for a period of weeks or months; they join the high court for one case and then return to their regular duties. At one point, the chief justice was empowered to select anyone she wanted as the pro tem justice, but more recently, the appointments are made from the full roster of Court of Appeal justices, more or less in alphabetical order. In contrast, if the U.S. Supreme Court or many state supreme courts without a similar system is short-handed for a period of time, they must continue as best they can one or more justices short.

One might think, if vacancies are always supplied, albeit with a temporary justice, that extended vacancies have comparatively little impact. But court observers say that's not so for three reasons. First, although pro tems occasionally sign or even write concurrences or dissents, the Supreme Court prefers that pro tem justices not author majority opinions. Accordingly, the workload of preparing majority opinions in the court's cases is spread among only six justices rather than seven for the duration of the vacancy. Second is the court's preference not to have pro tem justices cast the deciding vote in a case which has evenly divided the permanent justices, meaning that such cases are held indefinitely. Third is the issue of continuity. When a new permanent justice is appointed, the other members of the court have an opportunity to establish a working relationship with that justice. But under the current pro tem system, a substitute judge joins the court for one case, comparatively late in the decisional process, and then is gone.

The Supreme Court has decided 71 civil and 82 criminal cases during 2017 and 2018. Ninety-one pro tem votes have been cast in those cases -- 40 on the civil side and 51 on the criminal side. This is quite high by recent standards. Since 1991, only 3.04 percent of the total votes cast on the civil side and 2.02 percent on the criminal side have been cast by pro tem justices. Forty-one pro tem votes were cast in 2011 due to the departure of Chief Justice Ron George and Justice Marvin Baxter, but otherwise, in only 11 years of the past 28 years on the civil side and five on the criminal side since 1991 have even as many as 10 pro tem votes been cast.

Given that the Supreme Court's workload is being split among fewer justices, one might speculate that the court's productivity has decreased during the extended vacancy. But there's no clear drop-off in the court's total number of decisions per year; if anything, the court has produced slightly more decisions during the Werdegar vacancy, at least on the civil side, than in recent years. If more pro tem votes on the court means fewer decisions, all else being equal, then one would expect the total number of pro tem votes to be highly correlated in the negative direction with the court's total number of decisions published. In fact, we see no such evidence. Since 1991, the correlation between the total number of pro tem votes and the court's yearly total of cases decided is only -0.2485 on the civil side -- a low correlation -- and only -0.3404 on the criminal side -- a moderate correlation.

Is there evidence that the extended vacancy is slowing down the Supreme Court's work because a significant number of cases are being held by an evenly divided court? To assess this question, first I compared the yearly number of pro tem votes to the overall lag time from the grant of review to argument. Overall lag times are edging upward both on the civil and criminal side. So far in 2018, the average lag time from grant of review to argument has been 651 days on the civil side and 3,319 days on the criminal side (this figure is substantially inflated by the death penalty docket). During the last extended vacancies, in 2015, the civil lag was 616.31 days to 1,855.51 on the criminal side, and in 2011, the respective numbers were 477.42 (civil) and 1,811.18 (criminal).

But is the increase in lag times traceable to the extended vacancy following Justice Werdegar's retirement? If longer vacancies mean that cases are getting held over, one would expect to see a positive correlation between the total number of pro tem votes and the overall lag time. In fact, the correlation is relatively low on the civil side -- 0.2341. The evidence is a bit stronger on the criminal law side -- the correlation between criminal case pro tem votes and the overall grant-to-decision lag time is 0.5636. I then compared the number of pro tem votes since 2004 to the court's decisional period -- the number of days from the filing of the final brief until the oral argument. Here, we find a curious result. The correlation between civil pro tem votes and the decisional lag since 2004 is actually moderately negative: -0.4145 -- meaning that civil cases are getting argued faster on the civil side where there have been more pro tem votes. On the criminal side, the correlation is in line with our expectations, but very small: +0.1311. A final resolution to this question will have to await the year or so after a permanent justice takes his or her seat -- if a substantial number of closely divided decisions come down which have been held for an unusually long time in the first months of the new justice's tenure, it will support the "logjam" theory regarding the impact of the court vacancy.

There is some evidence that more pro tem justices increases unanimity on the Supreme Court, suggesting that permanent justices might feel freer to publicly disagree with their colleagues. In 2007 and 2008, with virtually no civil pro tem votes being cast, 19.64 and 10 percent of the civil cases (respectively) were decided by a 4-3 vote. In 2010, with 14 pro tem votes, 11.9 percent of the civil cases were decided by four justices, but in 2011, with 23 pro tem votes, only 3.03 percent of civil cases were decided 4-3. In 2014 and 2015, during the last extended vacancies, 8.7 percent (2014) and none (2015) of the court's civil cases were decided 4-3. As for this vacancy, 7.14 percent of civil cases in 2017 were decided 4-3, and none of the court's civil decisions this year have been. The unanimity rate in civil cases, which tends in most years to be in the high 60s or low 70s, this year has been 93.1 percent.

Correlations support this analysis. There is a moderate negative correlation between the total pro tem votes on the civil side and four vote, five vote and six vote decisions -- more pro tem votes, fewer four-, five- and six-vote decisions (-0.3924 for four votes, -0.6097 for five votes, -0.1271 for six votes). The correlation between pro tem votes and unanimous decisions is moderately positive at 0.4191 -- more pro tems, more unanimous decisions.

The picture is less clear on the criminal side of the docket. Closely divided decisions are less common, tending to run in the mid-to-high single digits as a percentage of the total caseload. The past two years have been in line with that, with 9.52 percent of criminal cases being decided by a 4-3 vote in 2017 and 7.5 percent in 2018. There is no clear increase in the number of five vote decisions either; such decisions are typically between ten and fifteen percent of the total caseload, and the data for 2017 (14.29 percent) and 2018 (12.5 percent) are in line with that. The unanimity rate has been 72.5 percent -- slightly below the rate for 2007-2014, but in line with recent years.

Correlation data likewise shows no clear impact on voting in criminal cases. On the civil side, the correlations between pro tem voting and four, five and six vote majorities were at least moderately positive. Only the correlation between pro tem votes and unanimous civil decisions was negative. On the criminal side, the result is reversed. There is a mildly positive correlation between pro tem votes and four (0.2626), five (0.4191) and six (0.0166) vote majorities on the criminal side. The correlation between pro tem votes and unanimous decisions is mildly negative on the criminal side at -0.2816.

The evidence strongly supports the anecdotal view that the court tries very hard to avoid 4-3 decisions with a pro tem in the majority. A total of 258 pro tem votes have been cast since 2005 in 1,213 civil cases. Only six times has the pro tem cast a deciding vote in a 4-3 decision. Over the same period, 219 pro tem votes have been cast in 1,549 criminal cases. Only four times has a pro tem cast a deciding vote.

Governor Brown has repeatedly said in response to questions about the vacancy that since Justice Werdegar's replacement will be his fourth nomination, establishing a "Brown majority" on the court, he wants to proceed very deliberately. To assess just how much is at stake in this vacancy, I reviewed Justice Werdegar's record in the close decisions of recent years. Justice Werdegar participated in three 4-3 civil decisions in 2017, four in 2016 and two per year in 2014 and 2013. In only five of those eleven decisions did Justice Werdegar cast the deciding vote -- one in 2017, two in 2016 and two in 2013. Justice Werdegar also participated in 11 4-3 decisions on the criminal side between 2013 and 2017 -- four in 2017, one in 2016, two in 2015 and four in 2014. In six of those 11 decisions, Justice Werdegar cast the deciding vote: one per year in 2017, 2016 and 2015, and three in 2014.

So what's our takeaway? What the numbers show is that all things considered, the remaining six members of the Supreme Court have had considerable success in coping with the increased workload arising from the extended vacancy. Nevertheless, there is some evidence that the vacancy has lowered the court's productivity somewhat, at least in criminal cases, and that criminal cases in particular are moving a bit more slowly. Although there is less evidence on the civil side that the vacancy is slowing down the overall case flow, there is some evidence that the replacement of Justice Werdegar with a succession of Court of Appeal justices is pushing the high court towards greater unanimity on the civil side.