This is the property of the Daily Journal Corporation and fully protected by copyright. It is made available only to Daily Journal subscribers for personal or collaborative purposes and may not be distributed, reproduced, modified, stored or transferred without written permission. Please click "Reprint" to order presentation-ready copies to distribute to clients or use in commercial marketing materials or for permission to post on a website. and copyright (showing year of publication) at the bottom.

Brown's impact on the court

By Kirk C. Jenkins Ben Armistead | Dec. 11, 2018

self-study / Appellate Practice

Brown's impact on the court

Jenkins kirk web

Kirk C. Jenkins

Senior Counsel, Arnold & Porter Kaye Scholer LLP


Harvard Law School

Kirk is a certified specialist in appellate law.

Goodwin Liu

(Part 2, Part 3)

The California Supreme Court's longest-ever vacancy is about to come to an end. On Dec. 21, the Commission on Judicial Appointments will meet to consider Gov. Jerry Brown's fourth appointment to the court, Senior Advisor Joshua P. Groban. Several times during the long vacancy, the governor explained the delay by saying that a fourth appointment to the seven-justice court was potentially crucial and needed to be carefully considered. So now that we have a nominee, it seems like a good time to consider the impact of the "Brown court."

We'll do this by comparing the data for the three years immediately before each Brown appointment to each new justice's first three years on the court. Today, we're considering Gov. Brown's first appointment: the September 2011 replacement of retired Justice Carlos Moreno (a Davis appointee) with Justice Goodwin Liu. Over the next few weeks, we'll consider Brown's second and third appointments, Justices Leondra Kruger and Mariano-Florentino Cuéllar.

Justice Liu joined the Supreme Court at a time when it appeared that the court's workload might be trending downward. Between 2009 and 2011, the court decided 304 cases. From 2012 to 2014, the court decided 263. Nearly all of that drop consisted of civil cases -- criminal decisions fell from 185 from 2009 to 2011 to 182 from 2012 to 2014, but the civil docket fell from 119 to 81. The subject areas of the court's decisions did not change much. From 2009 to 2011, 24.67 percent of the court's total docket consisted of death penalty cases. For the three years following, it was 24.71 percent. Criminal procedure and civil administrative law cases ticked up a bit, while employment, insurance and civil constitutional law cases fell as a share of the docket. Tort cases were flat -- 4.93 percent of the docket from 2009 to 2011, and 4.94 percent from 2012 to 2014. For the three years before Justice Liu joined the court, 78.95 percent of the court's decisions were unanimous. Given that Justice Liu was replacing the only Democratic appointee on the court, one might expect that the unanimity rate wouldn't change much, and it didn't -- from 2012 to 2014, 79.47 percent of the court's decisions were unanimous.

Justice Liu was a more frequent writer in his first three full years than Justice Moreno had been from 2009 to 2011. Justice Moreno wrote 22 majority opinions in civil cases and 19 in criminal cases. We would expect, all other things being equal, that each justice will write the majority opinion in one out of every seven cases, and Justice Moreno was quite close to that. Justice Liu's majority opinion totals in his first three full years were identical: 17 civil, 17 criminal. However, that amounts to 20.99 percent of the civil docket and only 9.34 percent of the criminal docket -- in other words, he was more likely than average to write the majority opinion in a civil case, and less likely in a criminal case. Justice Liu's concurrences and dissents suggest that his principal impact on the court during these years was on the criminal side. Justice Liu wrote six concurring opinions in civil cases but filed 26 in criminal cases -- that amounts to 7.41 percent of the civil docket, but 14.29 percent of the criminal side. He was nearly as busy when it came to dissents. Justice Liu filed only four dissents from 2012 to 2014 in civil cases but dissented 12 times in criminal cases. All told, Justice Liu wrote some sort of opinion in one third of the civil cases decided during those years, and 30.22 percent of the criminal cases.

With two seats on the court shifting from Republican appointees to Democratic ones, Justice Liu's writing patterns changed somewhat between 2015 and 2017. Justice Liu's majority opinions during those years were quite close to the one-in-seven rate we would expect: 14.45 percent of civil cases and 13.77 percent of criminal cases. Justice Liu was significantly less likely to file a concurrence in a criminal case -- 14.29 percent of the docket from 2011 to 2014 but only 7.97 percent from 2015 to 2017. His dissent rate declined as well, from 11.28 percent of civil cases from 2011 to 2014 to 7.62 percent from 2015 to 2017.

One way of comparing the degree of influence two justices had over the course of the court is the percentage of cases in which the justice voted with the majority. Justice Moreno voted with the majority in 90.91 percent of the civil cases between 2009 and 2011. Justice Liu voted with the majority in 95.24 percent of the civil cases from 2012 to 2014. Justice Moreno voted with the majority in 85.71 percent of the criminal cases in the last three years of his tenure, and Justice Liu voted with the majority in 92.59 percent of his first three years.

But of course, this is a somewhat misleading metric. In the average year, more than half of the court's decisions are unanimous. How do each justice's numbers look if we limit the data to non-unanimous decisions? In non-unanimous civil decisions, Justice Moreno voted with the majority in 63.16 percent of cases between 2009 and 2011. Justice Liu voted with the majority in only 50 percent of the non-unanimous civil decisions between 2012 and 2014. Justice Moreno voted with the majority in 78.26 percent of the criminal non-unanimous decisions during his last three years on the court. Justice Liu voted with the majority in only 60.61 percent of the criminal non-unanimous decisions between 2012 and 2014.

Another way to assess disagreement on the Supreme Court is to consider the justices' rate of voting to reverse the Court of Appeal, both compared to each other and compared to the courtwide rate. Since during these years, both Justice Moreno and Justice Liu were the lone Democratic appointee on the high court, one might expect their votes-to-reverse rate to differ from the entire court, either upwards (in the case of more conservative Court of Appeal opinions) or downwards (for more liberal Court of Appeal opinions). If Justice Liu's rate differed significantly from either Justice Moreno's or from his court, it might suggest that Justice Liu's philosophy differed significantly from Justice Moreno's. A significantly different vote-to-reverse rate might also arguably indicate either more or less deference to the Courts of Appeal.

But that's not what we find. Between 2009 and 2011, Justice Moreno voted to reverse in 58.59 percent of the civil cases he participated in. The entire court reversed in 56 percent of civil cases during the same period. Justice Moreno voted to reverse in 35.81 percent of the criminal cases he participated in between 2009 and 2011. The entire court reversed in 37.16 percent of criminal cases. Justice Liu's vote-to-reverse rate in civil cases was only slightly lower between 2011 and 2014 than Justice Moreno's. He voted to reverse in 56.98 percent of the civil cases he participated in, and the court reversed 56.98 percent of the time. Justice Liu was about a third more likely to vote to reverse in criminal cases -- 47.62 percent as compared to 35.81 percent for Justice Moreno -- but that wasn't an indication of being out of step with the rest of the court. Between Justice Liu taking his seat in 2011 and 2014, the court reversed in 46.03 percent of criminal cases.

Carlos Moreno

Listening to news commentators, one would think a central fear of politicians about judicial appointments is the "unexpected" voting record -- a Republican appointee who compiles a liberal voting record or a Democratic appointee who votes more conservatively. Although most lawyers would disagree that this is necessarily a bad thing -- indeed, judicial independence is a cornerstone of our system -- how often did Justices Moreno and Liu cast "unexpected" votes, given that both were Democratic appointees, between 2009 and 2014? Our coding system defines a "conservative" vote as typically supporting the defendant in civil cases (except for most challenges to taxes and government regulation), and the prosecution in criminal cases. "Liberal" votes are the reverse. So how often, in cases where the entire court upheld the "liberal" outcome, did the justices dissent and vote for the "conservative" one?

The answer is -- almost never. Between 2009 and 2011, Justice Moreno dissented with a "conservative" vote in only 1.01 percent of cases. Justice Liu cast few unexpected votes as well. Between 2011 and 2014, he dissented from a "liberal" outcome in only 3.49 percent of civil cases. The numbers for criminal cases were similar. Justice Moreno dissented from a pro-defendant outcome only 2.68 percent of the time. In 190 criminal cases between taking his seat in 2011 and the end of 2014, Justice Liu never dissented from a pro-defendant outcome.

In a previous column, we considered how crucial Justice Kathryn Werdegar's successor really would be by reviewing the number of 4-3 decisions in which she voted with the majority. With six Republican appointees for the final years of Justice Moreno's tenure and the first years of Justice Liu's, one would expect 4-3 votes to be rare, and indeed they were. Justice Moreno was in the majority of a 4-3 vote in five of seven civil cases between 2009 and his departure in 2011 and in three of four criminal cases. Justice Liu was in the majority of a 4-3 decision in two of four civil cases and seven of ten criminal cases between taking his seat in 2011 and the end of 2014. With two new Democratic appointees joining the court in 2015, shifting the ideological balance to 4-3 Republican, one might expect closely divided decisions to become more common between 2015 and 2017, but they didn't. Justice Liu voted with the majority in five of seven civil cases during those years, but only two of five criminal cases.

But perhaps the best evidence of all for studying how the court evolved when Justice Liu succeeded Justice Moreno is the justices' agreement rates -- how often, in civil and criminal cases, did each justice vote with each of their colleagues? To put it another way: Which justice was arguably the closest on the ideological scale to Justices Moreno and Liu?

For the years 2009 through 2011, Justice Moreno's voting record in civil cases most closely matched Justice Werdegar's. They agreed in 93.18 percent of civil cases in 2009, 94.74 percent in 2010, and in 100 percent of the civil cases in which Justice Moreno participated in 2011. In 2009, Justice Moreno's lowest civil agreement rates were with Justice Marvin Baxter (86.67 percent) and Justice Joyce Kennard (85.71 percent). In 2010, his lowest rates were with Chief Justice Ron George (85.71 percent) and Justices Ming Chin and Kennard (85 percent). The picture on the criminal side is a bit less clear. In 2009, Justice Moreno's agreement rate in criminal cases was above 90 percent for all but one of his colleagues (Justice Kennard -- 88.33 percent). In 2010, things reversed; Justice Moreno's agreement rate was in the eighties with all his colleagues except for Justice Kennard, who he agreed with in 94.44 percent of criminal cases.

In 2012, Justice Liu's civil agreement rate topped 90 percent with three Republican appointees: Chief Justice Tani Cantil-Sakauye and Justices Baxter and Werdegar. On the other hand, he agreed with Justices Kennard and Carol Corrigan in only 76.92 percent of civil cases, suggesting that they were seldom on the same side in divided opinions. In 2013, Justice Liu's agreement rate in civil cases was over 90 percent with every member of the court except for Justice Chin (86.21 percent). The following year, only Justices Baxter and Chin were below 90 percent (both 86.36 percent), and Justice Liu agreed with Justice Kennard in every one of the civil cases. In 2014, Justice Liu's agreement rates in criminal cases were high across the board. Most surprisingly, after two straight years where his lowest rate was with Justice Kennard, in 2014, Justices Liu and Kennard agreed in 96.3 percent of criminal cases. The other five justices were close behind, all at 94.44 percent.

We suggested at the outset that because both Justice Moreno and Justice Liu were Democratic appointees, this first Brown appointee would probably have had the smallest impact on the court. The data bears that out. Both justices had considerable success at finding common ground with their colleagues. Although Justice Liu wrote more often early in his tenure than Justice Moreno did late in his, the data suggests that both justices were relatively similar in their philosophies, and that the gulf between them and the Republican-appointed justices was not all that great.


Ben Armistead

Related Tests for Appellate practice

participatory/Appellate Practice

SCOTUS preview 1: immigration and border Issues

participatory/Appellate Practice

The state of the administrative state

participatory/Appellate Practice

High court endorses 'least-worst rule'

participatory/Appellate Practice

The drawn out battle over LA's city council maps

participatory/Appellate Practice

9th mulls nationwide injunctions and mootness

participatory/Appellate Practice

The Age of the Polar Court

participatory/Appellate Practice

The Age of the Polar Court