State Supreme Court defies expectations with increase in oral arguments

With a flurry of oral arguments scheduled this month, the state Supreme Court will easily avoid what some legal observers had predicted would be a term with the lowest number of published opinions in recent memory.

Instead, the court - under Chief Justice Patricia Guerrero, an appointee of Gov. Gavin Newsom who joined the court in 2022 and was elevated to the top job the following year - may continue its slow trend upward in the number of opinions.

Legal experts have debated the significance of the decline in opinions since Chief Justice Ronald M. George led the court, as the George court issued fewer opinions than state Supreme Courts did last century. The recent decline accelerated from a decade ago, and the court released its lowest number of opinions - 49 - during the 2021-22 term.

During last year's term, the number of opinions increased to 55. The court was moving at a slower pace during this term, but two sessions this month, with nine oral arguments each, will increase the number of oral arguments from 33 to 51 with the June session to go. (The court does not have oral arguments in July or August.)

Justices will hear several major cases during a May 21-22 calendar, including challenges to the constitutionality of Proposition 22, the initiative that classifies app-based drivers as independent contractors, and another case questioning whether losses to a business due to COVID-19 should be covered by insurance.

Benjamin S. Feuer, chairman of Complex Appellate Litigation Group LLP, said there is no reason to think the justices are not working hard for their salaries. He attributed the decline to a variety of factors - the COVID-19 decline of new filings in 2020 that is still lower than it was beforehand, fewer automatic death penalty appeals, and an alignment of judicial philosophy on California courts because Democratic governors have been making all the appointments since 2011.

"There are fewer cases with major policy determinations that come out differently than the way this court wants it to come out," Feuer said in a phone interview Friday.

He added that other factors make it less likely that the court will issue as many opinions as it did before COVID-19, when the number of published opinions ranged from 75 to 85.

Between the lower number of automatic death penalty appeals to the growing popularity of private judging, Feuer does not expect state Supreme Court opinions to bounce back, although a slow increase is likely as more cases are filed and work their way through appellate courts.

The California Constitution Center, an academic research center at UC Berkeley School of Law, downplayed any concern about the number of published opinions.

"The historical trend is toward fewer annual opinions: from several hundred opinions in the 1900s, to around 200 opinions in 1940-50, to about 100 opinions in the George era," the center wrote in a blog post last October. "There are several apparent causes: the intermediate appellate court's expansion, variations in court membership, and declining incoming petitions."

David S. Ettinger, of counsel at Horvitz & Levy LLP, said in a phone interview that Guerrero is "sensitive to the low number of opinions" but expressed little concern during a meeting with reporters in January about the court's slow start early in this term.

Thus far, she has proven to be correct - even if the number of published opinions still will be lower than it was a few years ago.