Brown’s impact: Baxter to Cuéllar

(Part 1, Part 2)

For the past several weeks, we've been reviewing the impact each of former Gov. Jerry Brown's first three appointees to the California Supreme Court have had on the court's work, comparing each new justice's first three years to the final three years of the justice he or she replaced. Today, we move on to the third and final part of our series -- Justice Mariano-Florentino Cuéllar, who was sworn in on Jan. 5, 2015, as retiring Justice Marvin R. Baxter's successor.

Last time when we were discussing the transition from Justice Joyce Kennard to Justice Leondra Kruger, we reviewed in detail where the court's docket and productivity stood between 2012 and 2017, so we'll only summarize those numbers here. Although the court's civil caseload increased comparing the years 2012-2014 to 2015-2017 from 81 civil cases in the earlier period to 110 civil cases in the latter one, the sharp decline in the number of criminal decisions was more than enough to erase that gain.

Government and administrative law has played an important role in the court's civil docket for a number of years now, and its share of the workload appears to be growing. During Justice Baxter's final three full years on the court, 17.28 percent of the civil docket was government and administrative law. During Justice Cuéllar's first three years, it was up to 28.18 percent. Constitutional law, civil procedure and environmental law were up sharply too. Except for a five-point jump in the share of the criminal docket accounted for by sentencing law (from 11.54 to 16.67 percent), the most prominent parts of that docket were largely static -- death penalty cases (from 36.26 to 37.68 percent) and criminal procedure (from 14.29 to 16.67 percent). During both three-year periods, the court generally decided about three-quarters of its civil cases and four-fifths of its criminal cases unanimously. During Justice Baxter's last three years, there was some indication that delay in civil cases might be decreasing a bit. In 2012, on average, 241.23 days elapsed from the filing of the final brief (including amicus and supplemental) and oral argument. In 2014, that number was 211.43. The criminal docket, on the other hand, seemed to be moving more slowly: 425.57 days from last brief to argument in 2012, 547.98 in 2014. Curiously, that relationship seems to have flipped between 2015 and 2017. On the criminal side, average days from last brief to oral argument was 528.17 days in 2015 and 492.83 in 2017, while the same metric increased on the civil side from 288.78 in 2015 to 385.48 in 2017.

Cuéllar

Justices Baxter and Cuéllar had different writing patterns during this period. During his final three full years, Justice Baxter wrote nine majority opinions in civil cases -- 11.11 percent of the court's civil output -- and 28 majorities in criminal cases, or 15.38 percent of the cases. Justice Cuéllar wrote 11 majority opinions in civil cases -- 10 percent of the court's total -- and 14 majorities in criminal cases, or 10.14 percent of the total. Neither were particularly prolific writers of concurrences. Justice Baxter wrote one civil and five criminal, while Justice Cuéllar wrote two and two. Justice Cuéllar was, however, a more frequent dissenter. In his last three years on the court, Justice Baxter wrote three dissents in civil cases and only one on the criminal side. Justice Cuéllar wrote four civil and five criminal dissents in his first three years.

Between 2012 and 2014, Justice Baxter voted with the majority in 93.33 percent of all civil cases. Justice Cuéllar voted with the majority in 97.37 percent of civil cases during his first three years. Justice Baxter voted with the majority in 98.35 percent of all criminal cases, while Justice Cuéllar did so in 94.62 percent of cases. Limiting our database to divided decisions shows that Justice Baxter was in the majority of a divided civil cases 78.95 percent of the time from 2012 to 2014, a number fairly close to the average on the court. Justice Cuéllar was in the majority of divided civil cases 80.77 percent of the time in his first three years. Comparing these same two periods on the criminal side, Justice Baxter voted with the majority 90.91 percent of the time, while Justice Cuéllar did only 76 percent of the time.

Justice Cuéllar's fewer majority opinions and greater number of dissents on the criminal side compared to Justice Baxter suggests that their judicial philosophies differed more on the criminal side than on the civil side. Looking at the percentage of the time each justice voted to reverse the Court of Appeal, we find some support for that theory. In his final three years, Justice Baxter voted to reverse the Court of Appeal 54.67 percent of the time in civil cases. Justice Cuéllar voted to reverse the lower court in 57.14 percent of his civil cases between 2015 and 2017. However, while Justice Baxter voted to reverse the Court of Appeal in 45.05 percent of criminal cases, Justice Cuéllar was somewhat more willing to reverse: 55.38 percent of criminal cases.

A frequent subject of debate among academic students of appellate decision-making has been the proposition (known as the attitudinal theory) that the best single predictor of an appellate judge's vote in a case is his or her political affiliation and/or the political affiliation of the appointing entity, whether a president or a governor. We test this theory by comparing the rates for Justices Baxter and Cuéllar of unexpected votes -- Justice Baxter dissenting from a conservative result, or Justice Cuéllar dissenting from a liberal one. On the civil side, we generally define a conservative result as a vote for the defendant, except for challenges to government regulation or taxation. In criminal cases, a conservative result is always a vote for the prosecution. Liberal votes are the reverse of each.

Justice Baxter's unexpected vote rate on the civil side was in line with many of the other justices we've reviewed -- 4 percent. Justice Cuéllar's, on the other hand, was much lower -- only 0.95 percent. Neither of the justices was at all likely to cast an unexpected vote on the criminal side of the docket -- 1.09 percent for Justice Baxter between 2012 and 2014, and only 0.77 percent for Justice Cuéllar (the same percentage as Justice Kruger's).

Baxter

Throughout this series, we've evaluated the impact of a Brown justice by comparing how frequently the new and the retiring justices were in the majority of 4-3 decisions. Although the court has had few 4-3 decisions in recent years, both Justice Baxter and Justice Cuéllar have been critical to the outcome of several closely divided cases. Justice Baxter was in the majority of only two 4-3 civil decisions in his last three years; in both cases, the conservative result prevailed. On the criminal side, Justice Baxter joined the majority in nine of 10 4-3 criminal decisions in those years, with the prosecution prevailing in seven of those nine cases by one vote. Justice Cuéllar provided the fourth vote for a 4-3 majority in five of the seven 4-3 civil decisions between 2015 and 2017. Four of those were liberal outcomes to only one conservative. Justice Cuéllar was less decisive on the criminal side, however, joining the majority in three of five 4-3 criminal cases. All three of those cases involved a prevailing defendant.

We also assess the significance of a change on the court by comparing the rate at which the retiring and the new justice voted with their colleagues. Justice Baxter's closest philosophical match on the civil side was Justice Ming Chin. He voted the same way as Justice Chin in 95.83 percent of civil cases in 2012, 96.3 percent in 2013 and 90.91 percent in 2014. Chief Justice Tani Cantil-Sakauye and Justice Carol Corrigan, two of the remaining Republican appointees during this period were the next closest matches. Justice Baxter's agreement rate with the chief justice was over 90 percent in 2012 and 2014, and just short of 90 percent in 2013. Justices Baxter and Corrigan's agreement rates followed the same pattern. Justice Baxter's lowest agreement rates during this period on the civil side were Justice Goodwin Liu and Justice Kathryn Werdegar.

Justice Cuéllar's closest match on the civil side was Justice Liu, with whom he had a 96.3 percent agreement rate in 2015, 94.44 percent in 2016 and 90.48 percent in 2017. Next was the chief justice, with whom Justice Cuéllar voted in 100 percent of civil cases in 2015, 97.22 percent in 2016 and 92.68 percent in 2017. Justice Cuéllar's civil agreement rates with Justices Werdegar and Chin were quite close throughout in the low nineties. Justice Cuéllar's lowest agreement rate in civil cases was with Justice Corrigan.

On the criminal side, Justice Baxter's closest match was Justice Chin -- their agreement rates were 97.4 percent, 98 percent and 100 percent. The second closest match was the chief justice -- 95.95 percent, 98 percent and 100 percent. His agreement rate on criminal cases with Justice Werdegar was also quite high -- 97.4 percent, 92 percent and 100 percent. Justice Baxter's lowest agreement rate in criminal cases was with Justices Liu and Kennard. In 2012, Justice Baxter agreed with Justice Liu in 89.47 percent of criminal cases, and with Justice Kennard in 88.31 percent. His agreement rates with Liu and Kennard were 92 percent and 90 percent in 2013, respectively. In 2014, Justice Baxter voted with Justice Liu in 94.44 percent of cases, but with Justice Kennard in 100 percent.

Justice Cuéllar's closest ideological matches on the criminal side were Justices Werdegar and Justice Liu. In 2015, Cuéllar voted with Justices Werdegar and Liu in every case. The next year, he again voted with Justice Liu in every criminal case, and with Justice Werdegar in 98.08 percent. In 2017, agreement rates with both justices fell off a bit -- 87.88 percent with Justice Werdegar and 85.71 percent with Justice Liu. The next closest match was Justice Kruger; despite a fall-off to 80.96 percent agreement in 2017, Cuéllar and Kruger voted together in every criminal case in 2015 and 2016. The three justices furthest removed in terms of agreement rate from Justice Cuéllar were the three still-serving Republican appointees: the chief justice and Justices Corrigan and Chin.

Although the court didn't begin posting videos of oral arguments on its website until mid-2016, after Justice Baxter's retirement, let's conclude with Justice Cuéllar's oral argument data. Most data analytics studies of oral arguments to date have related to the U.S. Supreme Court, and all have come to the same conclusion -- the party asked the most questions (both by the court as a whole and by each justice) is likely to lose. My study of the past 12 years of civil and criminal arguments at the Illinois Supreme Court came to the same conclusion. That background makes it all the more surprising that in its first two and a half years of arguments, there's evidence that the California Supreme Court may be an outlier.

The court asked more questions of the losing party in only 45.98 percent of civil cases since the court began posting oral arguments -- a less accurate predictor than pure chance. The more-questions-loses rule was more powerful on the criminal side; the losing party since 2016 has been asked more questions in 66.96 percent of cases. Justice Cuéllar tends to be a relatively heavy questioner, and once again, he is an outlier as far as the rule we're testing. In civil cases, Justice Cuéllar asked more questions of the losing party in 57.14 percent of cases. In criminal cases, he asked more questions of the losing party in 54.84 percent of cases.

This third transition of the Brown court, from Justice Baxter to Justice Cuéllar, changed the court in several ways. Like Justice Kruger, Justice Cuéllar impacted the court's decision making more on the criminal side of the docket than the civil side. Justice Baxter wrote frequently for the court in criminal cases during his last three years and tended to be a relatively reliable prosecution vote in those cases. Justice Cuéllar has written fewer criminal majority opinions and more dissents. Nevertheless, our study of the three transitions suggests that anyone expecting a substantial shift in the court's jurisprudence with the appointment of Justice Joshua Groban is likely to be surprised, given that the remaining Republican appointees tend to be comparatively moderate and tend to agree with each other more consistently than their Democratic colleagues.