The California Supreme Court during a pandemic: by the numbers

On March 13, President Donald Trump declared a state of emergency due to the COVID-19 pandemic. Since that time, the California Supreme Court has been adapting "on the fly" to find ways to do business even with the state in lockdown. The most obvious effect of the pandemic has been in the court's oral arguments. On March 16, the court issued an order suspending in-person arguments by counsel. For the April calendar, only Chief Justice Tani Cantil-Sakauye and Justices Carol Corrigan, Goodwin Liu and Mariano-Florentino Cuéllar were in the courtroom; Justices Ming Chin, Leondra Kruger and Joshua Groban and counsel all participated remotely. For the May calendar, only the chief justice and Justice Corrigan were in the courtroom -- the other five justices and counsel participated remotely. Beginning with the June 2 arguments, all justices and counsel have participated remotely for each argument.

Of course, the less public aspects of the Supreme Court's work have been affected as well. With the justices not working from the Supreme Court building every day, one wonders whether collegiality might have been impacted. Although much of the court's working towards unanimity revolves around trading memos and draft opinions, we all know from seven months' experience that making a remote video conversation as impactful as a face-to-face conversation can be a challenge, regardless of whether it's a justice lobbying a colleague to endorse his or her position on a case or a lawyer talking with a junior associate about a draft brief. Did the court's decisional period -- the time from the filing of the final brief to the scheduled oral argument -- decrease or increase during the lockdown? The Supreme Court is traditionally what appellate lawyers call a "hot bench," questioning advocates heavily. Has that changed with justices and advocates no longer in the same room? Are opinions being filed more quickly following oral argument or less?

We begin with the average days between filing and granting of a petition for review. In 2018, the average time from filing to grant for decided civil cases was 58.15 days. In 2019, it was 54.38 days. On the criminal side in 2018, non-death cases averaged 56.88 days from filing of the petition for review to grant (of course, there is no petition for review in death penalty cases, where review is automatic). In 2019, the non-death criminal average was 60.63 days. For civil cases which have been decided where review was granted prior to the March 13 emergency declaration, an average of 55 days passed between filing of the petition for review and the grant order. The average for such criminal cases was only a bit higher -- 55.36 days.

Reviewing the results of all the Supreme Court's conferences since the shutdown began, we find that the court has granted review in 11 civil cases. Nine civil cases have received grant-and-hold orders, and eight received grant-and-transfers. On the criminal side, 16 cases have received outright grants. One hundred seventy-four cases have been given grant-and-hold orders, and 24 cases have been granted and transferred.

Although grants on both the civil and criminal sides are comparatively small data sets, there is some indication that grant orders have slowed down a bit. The 11 civil grants have averaged 62.27 days from filing of the petition to the order -- a week longer than the pre-pandemic 2020 average. The 16 criminal grants have come at almost the same speed -- 62.69 days. Civil grant-and-hold orders during the lockdown have come in an average of 59.33 days, and civil grant-and-transfers have averaged 52.75 days. The 16 outright grants in criminal cases have averaged 62.69 days. The 24 grant-and-transfer orders averaged 53.3 days, and the 174 grant-and-hold orders came in an average of 40.77 days.

There is no evidence yet as to whether counsel are taking more or fewer briefing extensions during the lockdown, since the court has not yet decided any cases for which any of the party briefs were filed after March 13. For the same reason, data about whether the flow of amicus filings has grown or lessened during the lockdown and the resulting economic crisis is scarce. The court has decided three cases for which amicus briefing extended into the lockdown period. It received six amicus briefs in one of them, four in another and two in the third -- an increase over the pace of pre-pandemic filings, but of course a tiny data set.

There is evidence that the processing of the Supreme Court's merits cases has sped up since the lockdown began. For 2020 civil cases argued before the emergency declaration, the average time from the close of briefing to oral argument was 357.73 days. For civil cases argued post-declaration, the average time was more than three weeks shorter -- 333.94 days. For criminal cases argued before March 13, the average decisional period (excluding death penalty cases, which take much longer) was 382.61 days. For non-death criminal cases argued after the emergency declaration, the average has dropped to 324.13 days. September is always a slack period for new opinions as the court transitions from one judicial year to the next, but as of the beginning of October, the court is on track to produce an average number of new opinions. If the court produces opinions at the same pace during the final three months of the year, there will be 34 civil decisions and 42 criminal cases this year. The court produced 34 civil and 41 criminal decisions in 2019.

On the other hand, there is no clear trend in the data for the opinion-writing period -- the average days from oral argument to decision. On the civil side, the wait for a decision has increased just a bit since the lockdown -- 79.45 days pre-lockdown, 80.88 days post-lockdown. The numbers on the criminal side are reversed. For cases argued before March 13, an average of 83.66 days passed from oral argument to decision. For criminal cases argued since the lockdown began, the average has been 75.5 days.

The Supreme Court has maintained an unusually high rate of unanimous decisions for much of Chief Justice Cantil-Sakauye's service. Has the lockdown impacted the unanimity rate?

In 2019, 85.71% of civil decisions and 93.94% of criminal decisions were unanimous. In 2018, 75.61% of civil cases and 76% of criminal decisions were. All of the Court's 2020 civil cases which were argued before March 13 were unanimous decisions. Only 76.47% of the civil cases argued after March 13 have been unanimous decisions. On the other hand, the unanimity rate in criminal cases has been very high all year. For cases argued before the lockdown, 90.47% were unanimous decisions. All of the court's criminal decisions argued since the lockdown have been unanimous.

Reviewing the Supreme Court's decisions both before and after the lockdown reveals two additional data points for which we can only speculate about possible explanations. Majority opinions are getting longer since the lockdown began. For civil cases argued before March 13, the average majority opinion was 27.82 pages. Since March 13, the average has been 36.06 pages. For criminal cases, majorities in cases argued before March 13 averaged 41.52 pages. For cases argued since that time, the average majority has been 56.57 pages.

At least on the civil side, there has been a significant increase in the filing of additional opinions. For civil cases argued before March 13, only 18.18% drew additional opinions (either concurrences or dissents). Since the lockdown began, 47.06% of cases have drawn additional opinions. But the effect is reversed on the criminal side. Criminal cases argued before March 13 drew additional opinions one-third of the time. Criminal cases argued after the lockdown began have drawn additional opinions in only 14.29% of cases.

So what about the court's most public adjustment -- doing oral arguments by video? As I mentioned at the outset, the Supreme Court is a "hot bench." But with the advent of video arguments, things changed.

In oral arguments for civil cases decided this year, Chief Justice Cantil-Saukauye averaged 2.63 questions to appellants and 3.91 questions to respondents. In civil cases where neither the chief justice nor the advocates were in the courtroom, she averaged 2.34 questions to appellants and only 0.33 to respondents.

Justice Chin averaged 4.01 questions to civil appellants earlier this year when counsel was in the courtroom and 2.13 for remote arguments. He averaged 4.75 questions to civil respondents for in-person arguments and only 2.25 questions for respondents in remote arguments.

Justice Corrigan averaged 2.33 questions to appellants during in-person arguments in civil cases and 2.56 questions to respondents. She has averaged 1.17 questions to appellants in remote arguments and only 0.17 questions to respondents.

Justice Liu averaged 5.73 questions to appellants in civil cases argued in person and 4.45 questions to respondents. He has averaged only 1.08 questions to appellants and 1 question per argument to respondents in remote arguments.

Justice Cuéllar averaged 4.18 questions to appellants this year for in-person arguments in civil cases and 3.18 questions to respondents. He has averaged 3.17 questions to appellants and 2.67 questions to respondents since arguments shifted to video.

Justice Kruger averaged exactly five questions per argument to appellants for in person arguments in civil cases decided this year and 3.18 questions to respondents. Since arguments shifted to video, she has averaged only 1.88 questions to appellants and 1.19 questions to respondents.

Finally, Justice Groban averaged 1.81 questions to appellants and 2.45 questions to respondents for in-person arguments in civil cases this year. He has averaged 1.29 questions to appellants and 2.14 questions to respondents since arguments shifted to video.

For criminal cases, the drop in court questions was even more dramatic. Chief Justice Cantil-Sakauye averaged 2.9 questions to appellants and 1.25 questions to respondents when the court and counsel were in the courtroom. She averaged 1.93 questions to appellants and 0.43 questions to respondents when she was in court but counsel were not. For the criminal arguments where the chief justice participated remotely, she asked no questions.

Justice Corrigan averaged 5.57 questions to appellants and 1.67 to respondents in criminal cases where both the court and counsel were in the courtroom. When Justice Corrigan was in court but advocates were not, she averaged 0.46 questions to appellants and 0.54 to respondents. For completely remote arguments, she averaged two questions to appellants and none to respondents.

Justice Kruger averaged three questions to appellants and 2.24 to respondents in entirely in-person criminal arguments. For remote arguments, she averaged 0.71 questions to appellants and 0.64 to respondents.

Justice Chin has averaged two questions to appellants and 1.62 to respondents for in-person criminal arguments in cases decided this year. He has averaged 0.57 questions to appellants and 0.14 to respondents in remote arguments.

Justice Cuéllar averaged 2.34 questions to appellants and 1.81 to respondents for in-person criminal arguments. For the April calendar -- the only post-lockdown calendar where Justice Cuéllar was in the courtroom -- he averaged 0.67 questions to appellants and 0.33 to respondents. For entirely remote arguments, he has averaged 0.73 questions to appellants and 1.36 to respondents.

Justice Liu has averaged 2.29 questions to appellants and 4.48 to respondents for entirely in-person criminal arguments this year. For the April calendar, which he participated in in the courtroom, he averaged 3.67 questions to appellants and 0.33 to respondents. For entirely remote arguments, he has averaged 0.09 questions to appellants and none to respondents.

So far, only Justice Groban has been more active in remote criminal arguments than he was during in-person arguments. For the in-person arguments in cases decided this year, he averaged 0.7 questions to appellants and 0.9 to respondents. During remote arguments, Justice Groban has averaged two questions to appellants and 1.93 to respondents.

At the moment, it is unclear how much longer the Supreme Court will remain on a "COVID-19 footing." The court has announced that oral arguments will be entirely remote until at least the end of the year, and there is no clear indication of when San Franciscans will be allowed to return full-time to their offices. But seven months into the pandemic, the court appears to have adapted to the emergency quite well. 