Justice Leondra R. Kruger by the numbers

Today, we turn our attention to the sixth in our series of data-driven profiles of the justices of the California Supreme Court: Justice Leondra R. Kruger. Justice Kruger was appointed to the seat of retiring Justice Joyce L. Kennard by former Gov. Jerry Brown in November 2014. She was sworn in on Jan. 5, 2015, the same day as Justice Mariano-Florentino Cuéllar. From 2007 to 2013, Justice Kruger was an assistant to the United States solicitor general. She served as acting principal deputy solicitor general from 2010 to 2011. During her tenure in the solicitor general's office, she argued 12 cases at the Supreme Court. Justice Kruger left the solicitor general's office in 2013 to become deputy assistant attorney general in the Office of Legal Counsel.

As of the end of 2019, Justice Kruger had voted in 391 cases -- 171 civil and 220 criminal, quasi-criminal, juvenile, disciplinary and mental health. She has written 21 majority opinions in civil cases, which is 12.28% of the total number of civil cases she has participated in (an even distribution of cases among seven justices implies 14.29% of the total). Justice Kruger's busiest years were 2016 (seven majority opinions), 2017 (six majorities) and 2019 (four majorities). Her lightest year was 2015, when she wrote one majority opinion in a civil case. Justice Kruger has written 28 majority opinions in criminal cases, which is 12.73% of the criminal cases in which she has participated. Her busiest years were 2018, when she wrote 10 majority opinions, and 2017 (seven). She wrote no majority opinions in criminal cases during 2015.

Justice Kruger files relatively few concurrences. She has filed six in civil cases -- two in each of the last three years -- and five in criminal cases. Similarly, Justice Kruger seldom dissents. She has filed seven dissents in civil cases: four in 2016, three in 2017. This comes to only 4.09% of her civil caseload. She has filed five dissents in criminal cases: two in 2017 and 2019, one in 2018 -- only 2.27% of her criminal cases.

During Justice Kruger's first five years' service, the Supreme Court has decided 80.81% of its civil cases and 78.64% of its criminal cases unanimously. On the civil side, unanimity was at 85.19% in 2015, but fell to only two-thirds in 2016. In 2017, 76.19% of the court's civil decisions were unanimous. That figure went even higher in 2018, when 93.94% of the court's civil decisions were unanimous. Unanimity tailed off just a bit last year to 85.29%. After starting out high -- criminal unanimity was 80% in 2015 and 92.31% in 2016 -- the unanimity rate on the criminal side has been relatively consistent: 66.67% in 2017, 76% in 2018 and 75.61% in 2019. On both the civil and criminal side, Justice Kruger nearly always votes with the majority: 92.98% of civil cases and 95.45% of criminal cases. Justice Kruger voted with the majority in every civil case in 2018 and every criminal case in 2015 and did so in 98.08% of criminal cases in 2016.

Justice Kruger has written opinions in a dozen areas of civil law. She has written eight opinions on civil procedure issues (five of them majority opinions) and she has written four opinions each in employment law (two majorities), constitutional law (two majorities) and tort (three majorities). She has written three opinions regarding government and administrative law, all three majorities, and three tax opinions, one a majority. Justice Kruger has written two opinions on environmental law (one of them a majority) two on arbitration (again, one a majority) and one majority opinion each on property law, legal ethics and workers compensation.

Nineteen of Justice Kruger's 21 majority opinions were written for unanimous courts; two were for five-vote majorities. Four of her civil concurrences have been in unanimous decisions and one was in a case decided 6-1. Justice Kruger has filed one dissent in a case with a six-vote majority, four in 5-2 cases and two in a 4-3 decision.

Justice Kruger has written opinions in 10 areas of criminal law. The most common, of course, is death penalty cases, with 14 opinions, including 12 majorities. Justice Kruger has written six opinions on sentencing law (four of them majorities), six on constitutional law (five majorities), four on violent crimes (only one a majority opinion), two on criminal procedure (both majorities), two on property crimes (one a majority), and one each on vehicle crimes, immigration and juvenile offenses (all majorities). Justice Kruger has written one opinion in the area of habeas corpus.

Twenty-one of Justice Kruger's majority opinions in criminal cases have been for unanimous courts. She has written majority opinions in two cases decided 6-1, two decided 5-2 and three cases decided 4-3. Three of Justice Kruger's criminal law concurrences have been in cases decided unanimously. One was in a 5-2 decision and one a 4-3 decision. Three of Justice Kruger's criminal dissents were in 5-2 cases and two were in cases decided 4-3.

The possible influence of the four Brown appointees has been a frequent subject of discussion for the past year. With Justice Ming Chin retiring at the end of the judicial year in favor of Gov. Gavin Newsom's first appointee, even more Supreme Court-watchers will be evaluating to what extent the Democratic appointees vote cohesively. Our agreement rate measure is the percentage of non-unanimous decisions in which each other justice voted identically to Justice Kruger (in other words, "reversed" and "affirmed in part, reversed in part" doesn't count as agreement).

During her first two years on the court, Justice Kruger's closest voting match on the civil side was Justice Goodwin Liu, with whom she agreed in 75% of non-unanimous cases. Justices Kruger and Cuéllar voted together 68.75% of the time. Justice Kruger had an agreement rate of 62.5% with three Republican appointees, Chief Justice Tani Cantil-Sakauye and Justices Carol Corrigan and Kathryn Werdegar. Justice Kruger's lowest civil agreement rate was with Justice Chin -- 43.75%.

Justice Kruger's agreement rate in criminal cases during 2015 and 2016 was 100% with Justices Cuéllar and Liu. She agreed with Justice Werdegar in 90.91% of non-unanimous decisions. She agreed with Justice Corrigan 72.73% of the time, and with Chief Justice Cantil-Sakauye in 64.29% of cases. Justice Kruger agreed with Justice Chin in only 27.27% of civil cases for those two years.

Since 2017, Justice Kruger has not been aligned particularly closely with any of the other Democratic appointees to the court. Her highest civil agreement rate for 2017-2019 was with Justice Corrigan, at 76.47%. Justices Kruger and Liu agreed in 70.59% of cases. Justice Kruger agreed with the chief justice in 62.5% of non-unanimous civil cases. Justices Kruger and Joshua Groban agreed in 60% of non-unanimous civil cases. Justices Kruger and Werdegar agreed 55.56% of the time. Justices Kruger and Chin agreed in half of the non-unanimous criminal cases. Justice Kruger's lowest civil agreement rate since 2017 was with fellow Democratic appointee Justice Cuéllar -- 47.06%.

One thing is clear from Justice Kruger's agreement rate data for the past three years in criminal cases: Her agreement rates with her Democratic colleagues suggest that Justice Kruger is more closely aligned in her voting patterns with the three Republican justices. Justice Kruger's highest agreement rate in criminal cases 2017-2019 was with Justice Corrigan: 72.22%. Justice Kruger and the chief justice agreed in 69.44% of cases. Justices Kruger and Chin agreed 63.89% of the time. Justice Kruger agreed with Justice Werdegar in 58.33% of cases. Justices Kruger and Groban have agreed in 55.56% of non-unanimous criminal cases. Justices Kruger and Cuéllar have agreed half the time. Justice Kruger's agreement rate was lowest with Justice Liu: only 36.11%.

The data on Justice Kruger's questioning at oral argument divides cleanly into two periods: 2017-2018 and last year. In 2017 and 2018, she seldom asked the first question of civil appellants: 9.52% of cases in and 9.38% in 2018. She was a little more likely to lead off against civil respondents, but not a lot: 19.05% and 15.63%. Having Justice Kruger ask the first question in a civil case was a moderately strong indication that she might be writing: she wrote an opinion half the times she led off with the appellant in 2017 and two-thirds of the first questions in 2018, half the first questions to respondents in 2017 and 40% in 2018.

The data for 2017 and 2018 on the criminal side was similar. Justice Kruger led off against 7.32% of criminal appellants in 2017 and 10% in 2018. She asked the first question of criminal respondents in 9.76% of cases in 2017 and 12% of respondents in 2018. In 2017, she wrote in two-thirds of cases where she led off against the appellant and half the cases where she asked the first question of the respondent. In 2018, she wrote in 40% of the appellant first questions and 33.33% of the respondents.

But last year, the numbers took at sharp turn. For 2019, Justice Kruger began questioning against 23.53% of appellants and 14.71% of respondents. Asking the first question was a very weak indicator that she might be writing. Only 28.57% of her appellant first questions and 40% of the respondents were in cases where she filed an opinion. On the criminal side, she led off against appellants in 24.39% of cases and against respondents 26.83% of the time. Only 40% of the appellant first questions came in cases where Justice Kruger wrote an opinion and only 18.18% of the respondent first questions did.

However, Justice Kruger's average number of questions for each segment of oral argument wasn't up, despite her uptick in first questions. For civil appellants, she has averaged 3.45 questions (2017), 3.72 (2018) and 3.74 (2019). For civil respondents, she has averaged 3.57 questions (2017), 3.75 (2018) and 3.65 (2019). She asks very few questions during rebuttal: 0.38 in 2017, 0.44 in 2018 and 0.65 last year.

For criminal appellants, Justice Kruger averaged 2.05 questions (2017), 2.66 (2018) and 3.29 (2019). For criminal respondents, Justice Kruger averaged 2.73 questions (2017), 2.38 (2018) and 3.37 (2019). She is even less likely to ask questions during rebuttals in criminal cases than she is on the civil side -- 0.2 in 2017, 0.08 in 2018 and 0.17 in 2019.

All the academic work on oral argument analytics shows that the person who gets more questions is likely to lose. Justice Kruger's questioning over the past three years has not followed that pattern. In civil affirmances, she does indeed question the losing appellant more heavily: 4.3 to 3.77 in 2017, 4.38 to 2.31 in 2018 and 4.82 to 3.73 in 2019. But when we turn our attention to reversals, we see that in fact, Justice Kruger's pattern is to question the appellant more closely, regardless of the ultimate result. In 2017, she asked appellants 3.95 questions to 3.36 for respondents in reversals. In 2018, it was 4.14 to 4.6. In 2019, it was 4.35 to 3.7.

The story is different on the criminal side -- there, in each of the last three years, Justice Kruger has generally asked the party which ultimately loses the case the most questions. In 2017 she averaged 1.45 questions to appellants and 2 to respondents in affirmances, but in 2018, it was 3.33 to losing appellants and 1.87 to respondents, and last year, she averaged 2.48 to appellants and 2.19 to respondents. In criminal reversals, she averaged 2.94 questions to appellants and 3.67 to respondents in 2017. She averaged 2 questions to appellants and 3.28 to respondents in 2018. Last year, she averaged 4.15 questions to appellants and 4.58 to respondents.

Our data suggest that Justice Kruger may be near the ideological center of the Court, at least in the past three years: moderately liberal in civil cases, moderately conservative (more so than her fellow Democratic appointees) in criminal cases. She writes few concurrences or dissents and is nearly always in the majority. 