This week, we’re looking at a new topic in our continuing analysis of the California Supreme Court’s decision making since 2000: how high a fraction of the Court’s civil docket involved a dissent at the Court of Appeal, and what predictive value does a dissent at the Court of Appeal have for the result at the Supreme Court? The conventional wisdom is that a dissent at the Court of Appeal is an essential prerequisite of getting Supreme Court review. Additionally, one might expect that more non-unanimous decisions than unanimous ones at the Supreme Court would involve a dissent below, since presumably disagreement at the intermediate level would suggest a likelihood of dissent at the Supreme Court.

We report the data for the civil docket in Table 84 below. The data reflects that unanimity at the Court of Appeal is far from a disqualifier for getting Supreme Court review; nor is there a consistent relationship between non-unanimous and unanimous decisions as to dissent below. In 2000, 24% of non-unanimous decisions had dissents below to only 12.5% for unanimous decisions. The following year, dissent was fairly flat among non-unanimous decisions at 23.81%, but only 3.7% of the unanimous decisions involved a dissent below. But between 2002 and 2005, dissent below was fairly uncommon in the Court’s cases. In 2002, only 3.44% of the Court’s unanimous decisions involved a dissent, and none of the non-unanimous decisions did. The following year, 11.76% of the non-unanimous decisions involved a dissent below, while none of the non-unanimous decisions did. In 2005, 10.26% of non-unanimous decisions involved a dissent below, but none of the unanimous decisions did.

Dissent below became relatively common among the Court’s non-unanimous decisions between 2006 and 2012 (with the exception of 2009). In 2006, 35.71% of the Court’s non-unanimous decisions involved a dissent below. Just slightly more than twenty percent of the Court’s non-unanimous decisions involved a dissent below in 2007, 2008 and 2010. During the following two years, dissent below reached its highest level among the Court’s non-unanimous decisions – 37.5% in 2011 and 42.86% in 2012.

Dissent below didn’t stay at any consistent level among the Court’s unanimous decisions for the years 2006 through 2012. Only 7.69% of the cases involved dissents below in 2006. Dissents bounced around as a fraction of the unanimous decisions between 2007 and 2012: 12.12%, 22.58%, 10.81%, 3.03%, 24% and 15.79%, respectively.

The chart reflects that dissents below have been sharply down as a percentage of both sides of the civil docket in the past three years. None of the Court’s non-unanimous civil decisions involved a dissent below in 2013 or 2015. In 2014, only 14.29% of the non-unanimous decisions did. Dissents below were equally insignificant as a fraction of the unanimous decisions – 8% in 2013, 13.33% in 2014 and only 3.57% last year.

Click here for table.

Join us back here tomorrow as we look at the importance of dissent at the Court of Appeal in the Court’s criminal docket.