How have Brown’s appointees changed the Supreme Court?

(Part 1, Part 3)

With the swearing in of Justice Joshua Groban on Jan. 3, the longest vacancy in the history of the California Supreme Court has finally come to an end. Last month, we began a three-part look at how former Gov. Jerry Brown's previous appointments have impacted the high court, comparing the analytics for Justice Carlos Moreno's final three years on the court to Justice Goodwin Liu's first three years. Today, we move on to part two of our series -- Justice Leondra R. Kruger, who succeeded Justice Joyce L. Kennard on Jan. 5, 2015. Unlike Justice Liu's replacement of Justice Moreno, the Kruger-Kennard swap was the former governor's first opportunity to replace a Republican appointee.

Last time, we noted a decline in the court's overall workload during the early years of this decade. The overall decline continued in Justice Kennard's final three years and Justice Kruger's first three. From 2012 to 2014, the court decided 263 cases. In Justice Kruger's first three years, the court's output was down to 248 cases. The court's docket of civil decisions dipped from 119 for the years 2009 to 2011 to 81 in the years 2012 to 2014, but the docket recovered nearly all that ground from 2015 to 2017, when the court decided 110 civil cases. The court decided 185 criminal cases between 2009 and 2011 and 182 from 2012 to 2014, but that docket dropped sharply from 2015 to 2017, when the court decided only 138 criminal cases (although the 50 cases decided in 2018 suggests the criminal docket may be picking up speed again).

During Justice Kennard's last three years on the court, the top civil areas of law were government and administrative law (17.28 percent), civil procedure and tort (16.05 percent each) and employment law (11.11 percent). In Justice Kruger's first three years, the leading areas were government and administrative law (28.18 percent), civil procedure (20 percent), tort (9.09 percent) and constitutional law (8.18 percent). Constitutional law was up sharply as a share of the civil docket when we compare 2011-2014 and 2015-2017 (from 4.94 percent to 8.18 percent), as were environmental law (4.94 percent to 7.27 percent), government and administrative law (17.28 percent to 28.18 percent) and civil procedure (16.05 percent to 20 percent). Areas waning as a share of the civil docket included tax law (down from 6.17 percent to 2.73 percent), tort (16.05 percent to 9.09 percent), employment (11.11 percent to 6.36 percent) and property law (2.47 percent to 0.91 percent). The most frequent areas of law on the court's criminal docket were nearly identical from 2011 to 2014 and 2015 to 2017. During Justice Kennard's final years on the court, death penalty cases were 36.26 percent of the criminal docket. During Justice Kruger's first three years, they were 37.68 percent. Criminal procedure was 14.29 percent from 2011 to 2014 and 16.67 percent from 2015 to 2017. Sentencing law went from 11.54 percent to 16.67 percent. Although adding Justices Kruger and Mariano-Florentino Cuéllar to the court in early 2015 changed the composition of the court from 6-1 Republican appointees to a 4-3 Republican split, the unanimity rate was nearly unchanged. From 2011 to 2014, 74.07 percent of the court's civil cases and 81.42 percent of its criminal cases were unanimously decided. In the next three years, the civil rate was 76.36 percent and the criminal rate was 79.71 percent.

Justice Joyce Kennard

Justices Kennard and Kruger had substantially different writing patterns. During the final three years of her tenure, Justice Kennard wrote 9 civil majority opinions and 19 criminal ones. Justice Kruger wrote 14 civil majority opinions and 12 criminal ones. This means Justice Kennard wrote the majority opinion in 11.11 percent of civil cases and 10.38 percent of criminal cases, while Justice Kruger spoke for the court in 12.73 percent of civil cases and 8.7 percent -- of criminal cases. Neither justice wrote many concurrences; Justice Kennard wrote no civil concurrences and only five criminal ones between 2011 and 2014, while Justice Kruger wrote only two civil and four criminal in her first three years. Justice Kennard wrote seven civil (8.64 percent of that docket) and thirteen criminal dissents (7.1 percent of criminal cases). Nearly all of Justice Kruger's dissents were on the civil side -- seven to two. This amounts to 6.36 percent of the civil decisions, but only 1.45 percent of the criminal decisions.

A frequently used approximation of a justice's influence on the court is the percentage of cases in which the justice voted with the majority. The justices' overall civil percentages were nearly identical -- Justice Kennard voted with the majority in 91.18 percent of cases, Justice Kruger did in 89.52 percent. Justice Kruger was somewhat more likely to be in the majority in criminal cases, however -- 96.9 percent to 89.68 percent for Justice Kennard.

But of course, measuring majority votes against the entire caseload results in a skewed statistic, given the court's comparatively high percentage of unanimous decisions. When we limit our data to non-unanimous civil decisions, we find that Justice Kennard was in the majority 64.71 percent of the time from 2012 to 2014. Justice Kruger voted with the majority in non-unanimous civil decisions a bit less often -- 57.69 percent. The results were very different in criminal cases, however. Justice Kennard was in the majority on non-unanimous criminal cases only 58.62 percent of the time, while Justice Kruger was 80 percent of the time.

We also assess the change from one justice to another by comparing the justices' rate of voting to reverse the Court of Appeal. A significant difference could suggest that one justice's philosophy differed significantly from another's, or perhaps that one or the other was less deferential to the Courts of Appeal.

Justice Kennard's voting-to-reverse rate in the final three years of her tenure was quite close to the courtwide number. In civil cases, Justice Kennard voted to reverse in 57.81 percent of cases. The court as a whole reversed in 60.94 percent. In criminal cases, Justice Kennard voted to reverse in 48.65 percent of cases, while the court reversed in 45.27 percent. Justice Kruger, on the other hand, diverged a bit from the rest of the court in civil cases, reflecting her higher dissent numbers. Between 2015 and 2017, the court reversed in civil cases 59.8 percent of the time. Justice Kruger voted to reverse two thirds of those cases. Justice Kruger's voting-to-reverse rate was quite close to the court's in criminal cases, though. Both the court and Justice Kruger herself voted to reverse in 52.31 percent of cases.

Particularly in the case of appointments to the U.S. Supreme Court, one hears a lot of talk about what we might call the "unexpected" voting record -- a Republican appointee who compiles a liberal voting record or a Democratic appointee who votes more conservatively. Since Justice Kennard was a Republican appointee and Justice Kruger was a Democratic one, we measure the rate of "unexpected" votes by different standards -- a liberal vote from Justice Kennard in a case with a conservative result, or a conservative vote from Justice Kruger in a case which had a liberal result. In civil cases, we define a vote from the defendant as a "conservative" result, except in challenges to government regulation or taxation. In criminal cases, a "conservative" vote is always one for the prosecution. "Liberal" votes are the reverse.

Last time, we showed that neither Justice Moreno nor Justice Liu was at all likely to cast unexpected votes. Justice Kennard's last three years told a different story. In civil cases, Justice Kennard dissented from a conservative result in 4.41 percent of cases. In criminal cases, she dissented from a conservative result 7.24 percent of the time. Justice Kruger was almost exactly as likely as Justice Kennard to cast unexpected votes on the civil side. In 105 cases between 2015 and 2017, Justice Kruger dissented from a liberal decision in 4.76 percent of cases. But Justice Kruger was closely aligned with the rest of the court on the criminal side, dissenting from defendants' wins in only one of 130 cases -- 0.77 percent.

Another way to evaluate the impact of the switch from Justice Kennard to Justice Kruger is to compare the number of times each justice was in the majority of a 4-3 decision. This is an especially important measure when the switch changes the ideological balance of the court; for example, when a Republican appointee is in the majority of a 4-3 conservative decision, we can speculate that a new Democratic justice might shift the court's jurisprudence.

Justice Kennard was in the majority in only one of three civil 4-3 decisions and one of eight criminal decisions between 2012 and 2014. On the civil side, Justice Kennard joined the majority in one conservative decision, but dissented from two conservative decisions. On the criminal side, Justice Kennard joined a 4-3 majority in one decision for the prosecution. But she dissented from seven criminal decisions -- four prosecution wins and three defendants' wins. How often did Justice Kennard join the majority in a 4-3 "conservative" decision? The answer is seldom -- she joined the majority in only one of three conservative civil decisions and one of five prosecution wins on the criminal side.

Justice Kruger was in the majority of four of seven civil cases decided 4-3 between 2015 and 2017, and -- in contrast to Justice Kennard -- all five criminal 4-3 decisions. Since Justice Kruger was a Brown appointee, we look for 4-3 decisions which resulted in a liberal decision, where the result might have been different with a conservative justice. Justice Kruger was in the majority of two of four civil 4-3 cases which were won by plaintiffs and all three criminal 4-3 decisions won by defendants. On the other hand, she was in the majority of only one of three civil 4-3 decisions won by the defendants, and both criminal cases won by prosecutors.

Finally, we review the justices' rates of agreement with each of their colleagues. These numbers are evidence of each justice's philosophy and impact on the court by suggesting the closest ideological match to each justice. In civil cases, Justice Kennard's voting record for the years 2012 through 2015 was, by a narrow margin, closest to that of Chief Justice Tani Cantil-Sakauye, with a three-year average agreement rate of 93.73 percent. Justices Ming Chin and Carol Corrigan were close behind, at 93.44 percent and 93.4 percent, respectively. Justice Kennard's lowest agreement rate was with Justice Liu at 89.28 percent. Justice Corrigan was the closest match to Justice Kennard in criminal cases, with a three-year average agreement rate of 92.21 percent. The chief justice was next at 89.19 percent, followed by Justices Chin and Baxter at 88.31 percent, Justice Kathryn Werdegar at 85.71 percent and Justice Liu at 85.53 percent.

Between 2015 and 2017, Justice Kruger's highest agreement rate in civil cases was with Justice Liu, but not by much. Her three-year average rate with Justice Liu was 93.61 percent, but Justices Werdegar and Corrigan's averages were also over ninety percent. Justice Kruger's two lowest three-year averages were with Justice Cuéllar (89.81 percent) and Justice Chin (86.7 percent). The results on the criminal side were nearly identical. Justice Kruger's closest match was Justice Liu, with a three-year average agreement rate of 94.84 percent. Both Justice Corrigan and Werdegar's three-year averages were nearly as high (91.98 percent and 90.52 percent, respectively). Justice Cuéllar was next at 89.81 percent, followed by the chief justice (89.23 percent) and Justice Chin (84.64 percent).

In January 2015, we saw a significant shift in the personnel at the California Supreme Court, as two Brown appointees replaced two Republican appointees. The shift from Justice Kennard to Justice Kruger most clearly impacted criminal cases. Justice Kennard was a comparatively frequent dissenter in criminal cases during her final three years on the court, while Justice Kruger wrote almost no criminal dissents. Justice Kennard was more likely to cast "unexpected" votes in both civil and criminal cases than either Justices Moreno or Liu. Justice Kruger's rate was comparable to Justice Kennard's on the civil side, but she cast virtually no such votes in criminal cases. Finally, in contrast to Justice Kennard, Justice Kruger voted with the majority in every one of the court's 4-3 criminal cases in her first three years, both defense and prosecution wins.

In our final part in a couple weeks, we'll conclude our series assessing the impact of Justice Cuéllar's first three years on the court.