Justice Mariano-Florentino Cuéllar by the numbers

Today we turn our attention to our fifth subject in our series of data-driven profiles of the justices of the California Supreme Court: Justice Mariano-Florentino Cuéllar. Justice Cuéllar was appointed to the seat of retiring Justice Marvin Baxter by then-Gov. Jerry Brown in the summer of 2014. He was sworn in on Jan. 5, 2015, the same day as Justice Leondra Kruger. Prior to joining the court, Justice Cuéllar was Stanley Morrison Professor of Law at Stanford Law School. During his years at Stanford, Justice Cuéllar wrote extensively on a wide range of subjects, including administrative law, criminal law, cyberlaw and citizenship and migration. He also served as co-director of Stanford's Center for International Security and Cooperation and as director of the Freeman Spogli Institute for International Studies. Cuéllar took leave from Stanford in 2009 to serve in the Obama White House as special assistant to the president for justice and regulatory policy.

To date, Justice Cuéllar has voted in 387 cases -- 169 civil and 218 criminal, quasi-criminal, juvenile, disciplinary and mental health. He has written majority opinions in 21 civil cases, which is 12.43% of the total number of civil cases he has participated in. 2019 may wind up being Justice Cuéllar's busiest year in terms of civil majorities -- he has written five so far, tying his totals for 2017 and 2018. He wrote three majority opinions each in 2015 and 2016. Justice Cuéllar has written majority opinions in 32 criminal cases, which is 14.68% of the criminal cases in which he's participated. Justice Cuéllar's busiest year was 2018, when he filed 11. He wrote eight criminal majority opinions in 2016, six in 2017 and he has written five so far this year. His lightest year was his first year on the court, when he wrote two majority opinions in criminal cases.

Justice Cuéllar has filed concurrences in only five civil cases: two in 2018 and one each in 2015, 2017 and 2019. This comes to only 2.96% of his civil cases, well behind Justice Goodwin Liu's civil concurrence rate. Justice Cuéllar has filed concurring opinions in only two criminal cases. Justice Cuéllar has filed six dissents in civil cases (3.55% of his civil caseload), making his dissent rate almost identical to Justice Liu's. He dissented twice each in 2016 and 2017, once in 2018 and once so far this year. He has filed dissents in 4.13% of his criminal cases -- nine in all. Nearly half of these dissents were filed in 2017.

During his tenure, the Supreme Court has decided 81.66% of its civil cases and 78.44% of its criminal cases unanimously. After a two-year dip in civil unanimity in 2016 and 2017 (66.67% and 76.19%, respectively), the unanimity rate rose to 93.94% in 2018 and 90.32% so far this year. Criminal unanimity has been more consistent year by year: after reaching 92.31% in 2016, it fell to 66.67% in 2017, 76% last year and 73.68% so far in 2019.

Justice Cuéllar has filed opinions in 12 areas of civil law. He has written eight opinions addressing issues of government and administrative law, five of them majority opinions. He has written four opinions on civil procedure, all of them majorities. He has written three opinions each on employment law (one majority), constitutional law (one majority), tort (two majorities) and environmental law (one majority). Justice Cuéllar has written two opinions each on workers compensation (one majority) and insurance law (both majorities). Finally, he has written one opinion each in four areas, all of them majorities: contract law, construction law, bankruptcy law and arbitration.

Seventeen of Justice Cuéllar's majority opinions have been for unanimous courts. Two were filed for five-vote majorities and two were in cases decided 4-3. All five of Justice Cuéllar's concurring opinions in civil cases were filed in unanimous decisions. Justice Cuéllar does not appear to limit his dissents in civil cases to closely divided courts; he has written three in 6-1 decisions, two in 5-2 decisions and two in 4-3 decisions.

Justice Cuéllar has written opinions in 11 areas of criminal law. Most were in death penalty cases: 17 decisions, including 11 majority opinions. Justice Cuéllar has written seven decisions on sentencing law (six of them majorities), seven on constitutional law (five majorities), three on criminal procedure (two majorities), three on violent crimes (two majorities) and two decisions involving property crimes (both majorities). Finally, he has written one opinion each -- all majorities -- relating to habeas corpus, juvenile justice, political crimes and sexual offenses.

Twenty-seven of Justice Cuéllar's majority opinions in criminal cases have been for unanimous courts. He has written majority opinions in one case decided 6-1, 3 cases decided 5-2 and 1 decided 4-3. Justice Cuéllar's dissents have been evenly distributed, with three in 6-1 decisions, 2 in 5-2 decisions and 4 dissents in 4-3 criminal decisions.

We track each justice's agreement rate with every other justice to identify the court's philosophical center of gravity and assess whether any voting blocs might be emerging. Because the court typically has a very high unanimity rate, we calculate agreement rates with non-unanimous decisions only. Since that is typically a relatively small data set in any given year, we group several years together in analyzing the numbers.

During his first two years on the court, Justice Cuéllar's closest voting match on the civil side was with Chief Justice Tani-Cantil-Sakauye -- an agreement rate of 93.75%. He agreed with Justice Carol Corrigan nearly as often: 91.67%. Justice Cuéllar agreed with Justices Liu and Kathryn M. Werdegar in 81.25% of non-unanimous civil cases. His lowest civil agreement rates during these years were with Justice Kruger (68.75%) and Justice Ming Chin (62.5%).

During his first two years on the court, Justice Cuéllar voted identically in criminal cases to Justices Kruger and Liu, with an agreement rate of 100%. His agreement rate with Justice Werdegar was nearly as high: 90.91%. His agreement rate with the remaining Republican-nominated Justices were far lower: Justice Corrigan, 72.74%; Chief Justice Cantil-Sakauye, 63.64%, and Justice Chin, 27.27%.

On the civil side between 2017 and 2019, Justice Cuéllar's closest philosophical matches were with Justices Joshua Groban and Werdegar. His agreement rate with Justice Groban is 77.78%, and his agreement rate with Justice Werdegar prior to her retirement was 75%. Justice Cuéllar agreed in 61.54% of non-unanimous civil cases with Chief Justice Cantil-Sakauye and Justices Corrigan and Kruger. He agreed with Justice Chin in only 57.69% of non-unanimous civil cases. Justice Cuéllar's lowest agreement rate in civil cases was with Justice Liu at 53.85%.

On the criminal side, Justice Cuéllar's closest match is with Justice Groban. Since Justice Groban joined the court, Justices Cuéllar and Groban have agreed on 77.78% of non-unanimous criminal decisions. Justices Cuéllar and Werdegar had an agreement rate of 66.67%. Justices Cuéllar and Chin agreed in only 55.56% of non-unanimous civil cases. Justice Cuéllar's agreement rate was 50% with Chief Justice Cantil-Sakauye and Justices Kruger and Liu.

As readers of our earlier profiles will recall, several studies of oral argument analytics have been done in the past 20 years, both by academics and practitioners (John Roberts published one not long before his nomination as chief justice). The results have been consistent across hundreds of arguments: The side that gets the most questions is likely to lose.

Justice Cuéllar is a frequent questioner, and often begins the questioning against one party or both. In 2017, Justice Cuéllar led off against one or both parties in 57.14% of civil cases and 41.46% of criminal cases. In 2018, he began in 48.48% of civil cases and 32% of criminal cases. So far in 2019, he has led off in 60% of civil cases and 44.74% of criminal cases.

Justice Cuéllar is far more likely to lead off the questioning when he is writing an opinion in the case. Since 2017, Justice Cuéllar led off against one or both sides in 86.36% of civil cases where he wrote an opinion. When he was not writing Justice Cuéllar began only 45.78% of the time. On the criminal side, Justice Cuéllar led off 65.52% of the time when he wrote an opinion. He led off in only 30.69% of criminal cases where he did not.

In 2017, Justice Cuéllar averaged 6.07 questions to appellants in civil cases and 5.62 to respondents. The following year, he averaged 5.92 questions to appellants and 5.94 to respondents. So far this year (in decided cases only) he has averaged 5.13 questions to appellants and 4.6 to respondents.

In civil affirmances where Justice Cuéllar joined the majority, he averaged 6.32 questions of appellants (the losing party) in 2017 to 4.25 of winning respondents. The following year, he averaged 4.64 questions of appellants, 4.5 of respondents. So far this year, he has averaged 5.33 questions of appellants to 5.44 of respondents.

In civil reversals with Justice Cuéllar in the majority, he averaged 5.86 questions of losing respondents in 2017 to 5.52 of appellants. In 2018, he averaged 7.07 questions of respondents and six of appellants. So far this year, he's averaged 4.13 of respondents and 5.69 of appellants.

When Justice Cuéllar is in the minority, does he more heavily question the party he is voting against or the party that will lose the case? Because Justice Cuéllar is so often in the majority, data is very limited, making our conclusions highly tentative. Justice Cuéllar dissented from no civil affirmances in 2018. In 2017, he averaged 22 questions of respondents (the party he voted against) to 10 of appellants. So far this year, he has averaged 10 questions of respondents to six of appellants. The difference is less when Justice Cuéllar is in the minority of a reversal. Justice Cuéllar averaged 8.5 questions of appellants (the party he voted against) in 2017 in cases where he dissented from a reversal and five questions to respondents. In 2018, he averaged eight questions of appellants to seven of respondents.

For criminal cases in 2017, Justice Cuéllar averaged 3.2 questions to appellants, 3.54 to respondents. In 2018, he averaged 2.96 questions to appellants and 2.44 questions to respondents. So far this year, he has averaged 2.66 questions to appellants and 2.95 to respondents.

In 2017, Justice Cuéllar averaged 2.84 questions to appellants in affirmances and 2.95 to respondents. In 2018, he averaged 3.04 questions to appellants and 1.63 to respondents. So far in 2019, he has averaged 1.79 questions to appellants and 2.26 to respondents.

As for reversals with Justice Cuéllar in the majority, he averaged 3.94 questions to respondents and 3.44 to appellants in 2017. In 2018, he averaged 3.63 questions to respondents and 2.44 to appellants. So far in 2019, the numbers are dead-even in reversals: 3.44 questions to respondents, 3.44 questions to appellants.

The data for criminal cases where Justice Cuéllar was in the minority is largely inconclusive. In affirmances, Justice Cuéllar averaged 5.67 questions to respondents in 2017 to 3.67 to appellants. The following year, he averaged three questions to respondents and four to appellants. In 2019, he has averaged seven questions to respondents and five to appellants. In reversals with Justice Cuéllar in the minority, he averaged four questions to appellants in 2017 and one to respondents. In 2018, he averaged 5 questions to appellants and 5.5 to respondents.

Our takeaways from Justice Cuéllar's first five years on the court are: He writes few concurrences and does not appear to write "tactical dissents," meaning deciding whether to dissent based on the court's vote. His voting patterns have been relatively moderate in recent years, comparable in both civil and criminal cases to Justice Werdegar and (if his first year on the court is an indication) Justice Groban. Justice Cuéllar's voting patterns are not closely comparable to Justices Liu and Kruger. He is an active questioner at oral argument, and if he asks the first question, it may mean he is writing an opinion. 