Justice Goodwin Liu by the numbers

Today, we pass the halfway point in our ongoing series of data-driven profiles of the justices of the California Supreme Court. Our fourth subject, Justice Goodwin Liu, was sworn in on Sept. 1, 2011, succeeding Justice Carlos Moreno. Justice Liu is the senior of four current justices appointed to the court by former Gov. Jerry Brown. Prior to joining the court, Justice Liu was associate dean and professor of law at the UC Berkeley School of Law. He was nominated to a seat on the 9th U.S. Circuit Court of Appeals by former President Barack Obama in 2010, but the nomination was filibustered by Republican Senators. Justice Liu ultimately withdrew his name from consideration for the seat two months before being appointed to our Supreme Court.

In his eight years on the California Supreme Court, Justice Liu has voted in 258 civil cases and 410 criminal, quasi-criminal, juvenile, disciplinary and mental health cases. He has written majority opinions in 43 civil cases -- 16.67% of the civil cases he has participated in (if majority opinions were randomly assigned, we would expect each justice to write them in 14.29% -- one seventh -- of his or her cases). His busiest years were 2013, when he wrote eight civil majorities, 2017, when he wrote seven, and 2012 and 2016, when he wrote six. Justice Liu's lightest years were 2014, 2015 and 2018, when he wrote four civil majority opinions. Justice Liu has written 54 majority opinions in criminal cases to date, or 13.17% of the criminal cases he has participated in. Justice Liu wrote 11 majority opinions in criminal cases in 2018. His lightest years were 2014 and 2017, when he wrote five majority opinions.

Justice Liu has written 20 concurrences in civil cases, or 7.75% of his cases. For comparison, Chief Justice Tani Cantil-Sakauye has written concurrences in only 1.85% of her civil cases. Justice Liu has written 45 concurrences in criminal cases. He has written at least one concurrence in a criminal case every year since he joined the court and was especially busy early in his tenure, writing 10 criminal concurrences in 2012, eight in 2013 and nine in 2014. The numbers are similar with respect to dissents. Justice Liu has dissented in only nine civil cases, or 3.49% of his total docket. However, he has filed 32 dissents in criminal cases -- 7.8% of his criminal cases. Thus, Justice Liu has written an opinion of some kind in roughly 30% of the criminal cases he has participated in since taking his seat.

Unanimity has been quite high throughout Justice Liu's tenure. Since he took his seat, 79.46% of the civil cases and 80.49% of the criminal cases he has participated in were decided unanimously. Unanimity in civil cases has spiked in the past two years, reaching 93.94% in 2018 and 89.66% so far in 2019. Except for a one-year spike in 2016 to 92.31%, unanimity in criminal cases has been relatively consistent from year to year. Notwithstanding the number of dissents he has written, Justice Liu has voted with the majority in 93.41% of his civil cases and 89.51% of his criminal cases. Among the justices we've already profiled, on the civil side this places Justice Liu well behind the chief justice (97.41%), roughly equal with Justice Carol Corrigan and slightly ahead of Justice Ming Chin (92.85%). On the criminal side, the chief justice and Justices Chin and Corrigan have all voted with the majority 6-to-9% more often than Justice Liu has.

Justice Liu has written opinions in sixteen different areas of the civil law. He has written 14 opinions about government and administrative law, eight of them majorities. He has written eight opinions in each of four different subjects employment law (six majorities), tort law (five majorities), civil procedure (four majorities) and constitutional law (three majorities). Justice Liu has written five opinions about tax law (four majorities) and five about arbitration (three majorities). He has written three opinions in environmental law (two majorities) and insurance law (one majority). He has written two opinions in consumer law (both majorities), domestic relations (one majority) and secured transactions (both majorities). Finally, he has written one opinion each relating to property law, trusts & estates, workers compensation and election law. The property law and trusts & estates opinions were majorities.

Thirty-three of Justice Liu's 43 civil majority opinions were for unanimous courts. He also wrote the majority opinion in six 6-1 decisions, three 5-2 cases and one 4-3 decision. Three quarters of Justice Liu's concurring opinions in civil cases were in unanimous decisions. Justice Liu was the lone dissenter in four of his civil dissents. Three times, he dissented in a 5-2 decision, and he dissented twice in a 4-3 case.

Justice Liu has written opinions in ten areas of law on the criminal side of the docket. He has written most often in death penalty cases: 58 opinions, 22 of them majorities. He has written 14 opinions each in sentencing (seven majorities) and criminal procedure (six majorities). He has written 10 opinions in constitutional law (only three majorities) and violent crimes (four majorities). Justice Liu has written eight habeas corpus decisions, including three majority opinions, six opinions about juvenile justice (four majorities), three dealing with property crimes (two majorities) and two each in mental health (both majorities) and sexual offenses.

Forty of Justice Liu's 54 criminal majority opinions have been for a unanimous court. Five times, he has written the majority in a 6-1 decision. He wrote the majority in four 5-2 cases and five 4-3 decisions. Thirty-eight of Justice Liu's 42 criminal concurrences were for unanimous courts. Contrary to civil cases, Justice Liu's dissents tend to be in closely divided cases. He has dissented 16 times in 5-2 cases, nine times in 4-3 cases, and seven times in 6-1 decisions.

Next, we review Justice Liu's agreement rate in non-unanimous decisions with the other justices on the court. We do this to assess the court's decision-making "center of gravity." For example, if three Republican nominees nearly always vote the same way in divided decisions while Democratic appointees are frequently at odds, the three Republican nominees might have effective control of the court's decisions. We calculate agreement rates three years at a time. We use only divided decisions because, given the court's uniformly high unanimity rate, overall agreement rates would be quite high and tend to make patterns tougher to see.

In civil cases during the first three years of his tenure, Justice Liu's voting patterns were most similar to Justice Kathryn Werdegar: Their agreement rate was 81.25%. Next were Chief Justice Cantil-Sakauye (75% agreement) and Justice Corrigan (73.33%). Justice Liu's agreement rates with Justice Marvin Baxter (57.14%) and Justice Chin (50%) were much lower, but the lowest rate on the court was between Justice Liu and Justice Joyce Kennard -- 37.5%.

Voting patterns shifted between 2014 and 2016 with the addition of two new justices, Leondra Kruger and Mariano-Florentino Cuéllar. Justice Liu's highest civil agreement rates were with his fellow Brown appointees, Cuéllar (81.25%) and Kruger (75%). Justice Liu and Chief Justice Cantil-Sakauye agreed in 73.91% of divided civil cases. Justices Liu and Werdegar agreed in 65.22% of cases. Justices Liu and Baxter agreed in 57.14% of the non-unanimous cases Justice Baxter participated in before his retirement. Justices Liu and Corrigan's agreement rate was 52%. Justice Liu's lowest civil agreement rate during these years was with Justice Chin: (47.83%).

Between 2017 and 2019, Justice Liu's civil agreement rates have drifted down a bit. Once again, his highest rate was with Justice Werdegar -- 77.78%. His agreement rates with the three other Brown appointees were tightly clustered: Justice Kruger (66.67%), Justice Joshua Groban (66.67%) and Justice Cuéllar (60%). But the three Republican nominees to the court were not far behind: Justice Corrigan (60%), Chief Justice Cantil-Sakauye (57.14%) and Justice Chin (42.86%).

Justice Liu's agreement rates on the criminal law side are generally lower. Between 2011 and 2013, although Justice Liu agreed with Justice Corrigan in 70.83% of cases, his agreement rates with four Justices were in the fifties: Chief Justice Cantil-Sakauye (58.33%), Justice Werdegar (58.33%), Justice Chin (54.17%) and Justice Baxter (50%). Justices Liu and Kennard had an agreement rate of only 33.33%.

Between 2014 and 2016, Justices Liu, Kruger and Cuellar agreed on every non-unanimous criminal decision. Justice Liu's agreement rate with Justice Werdegar was 82.61%. His agreement rate in Justice Kennard's final cases before her retirement was 80%. Justices Liu and Corrigan agreed 69.57% of the time. Justice Liu and the chief justice agreed in 56.52% of cases. Justices Liu and Baxter agreed in only half of their non-unanimous cases. Justice Liu and Justice Chin's agreement rate from 2014 to 2016 was 39.13%.

Justice Liu's criminal agreement rates have been at their lowest over the last three years, reflecting the distinctions between the criminal law philosophies of Brown's nominees. Although Justices Liu and Groban have agreed in all their criminal non-unanimous cases so far, Justice Liu's next highest agreement rate was with Justice Werdegar, 50%. Justices Liu and Cuéllar have agreed in only 48.48% of their non-unanimous criminal cases. Justices Liu and Kruger have agreed only 36.36% of the time. Justice Liu's agreement rates with the chief justice, Justice Chin and Justice Corrigan were identical -- 24.24%.

As we've explained in earlier profiles, analytic studies of appellate oral arguments have consistently concluded that the party which gets more questions is statistically more likely to lose, and in most cases, individual justices follow the same pattern -- more questions to one side suggests he or she will be voting against that side's position.

Justice Liu is among the more active members of the court at oral argument. In 2017, he averaged 4.74 questions to appellants and 7.05 to respondents. The following year, he averaged 5.57 questions to appellants and 6.15 to respondents. So far this year in decided civil cases, he's averaged 4.76 questions to appellants and 5.9 to respondents. In criminal cases, Justice Liu averaged 4.92 questions to appellants in 2017, 3.7 in 2018 and 3.88 in 2019. He averaged 7.12 questions to respondents in 2017, 4.82 in 2018 and 4.52 in 2019.

At least for the past three years, Justice Liu has not followed the usual pattern found in oral argument analytics -- he routinely questions the respondent more heavily than the appellant. In 2017 civil cases where he joined a majority to affirm, he asked appellants (the losing party) 5.07 questions to 6.93 to respondents. The following year, it was 4.21 to appellants, 5 to respondents. So far this year in affirmances, Justice Liu has averaged 5.78 questions to appellants, 7.33 to respondents. Civil reversals where Justice Liu voted in the majority show similar numbers: in 2017, 4.68 to appellants, 6.05 to respondents. In 2018, 5.93 to appellants, 6.79 to respondents. Only in 2019 did questions to losing respondents outpace appellants: 4.44 questions for appellants, 4.13 for respondents.

Although the difference is not quite as great, Justice Liu also generally questions the respondent more heavily in criminal cases. In criminal affirmances, he averaged 3.71 questions to appellants in 2017, 3.66 in 2018 and 2.13 in 2019. He averaged 4.47 questions to respondents in 2017, 3.54 in 2018 and 3.19 in 2019. In reversals, Justice Liu averaged 3.76 questions to appellants in 2017, 2.13 questions in 2018 and 5.82 in 2019. He averaged 5.19 questions to respondents in 2017, 2.71 in 2018 and 5.94 in 2019.

Justice Liu is one of the most prolific writers on opinions on the California Supreme Court. He has frequently filed concurring and dissenting opinions, especially in the early years of his tenure. His civil dissents are relatively evenly distributed between six vote, five vote and four vote majorities. His criminal dissents, however, preponderantly occur in cases with five or four vote majorities. His agreement rates with the other nominees of former Gov. Brown is significantly lower than the rates among justices nominated by Republican governors, especially in criminal cases, suggesting that the emergence of a cohesive "Brown Court" is unlikely. 