Texas Supreme Court Voting Patterns

Lessons from the Longest Serving Court in Texas History (2006-2009), delivered March 2010

Transcript

1. LESSONS FROM THE LONGEST-SERVING SET OF NINE JUSTICES IN TEXAS HISTORY Justice Don R. Willett Supreme Court of Texas Don Cruse Law Office of Don Cruse Civil Appellate Section March 4, 2010
2. What’s new? Stability.
3. • 1990s: ten changes in ten years • 2001-2004: change every 159 days • Fall 2005- Fall 2009: no changes Historical Rarity
4. 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 Historical Rarity Willett Johnson Green Medina Brister Wainwright Jefferson O’Neill Hecht
6. Starting Points •Richer set of data for voting patterns and trends •See how one Court adapts, without changing membership
7. Voting Patterns
8. Signed Majority 259 Per Curiams 227 Deciding Opinions 9 votes 144 8 votes 24 7 votes 22 6 votes 25 5 votes 39 Visiting Judge Assigned 5
9. Hecht O’Neill Wainwright Brister Medina Green Johnson Willett Jefferson 59% 69% 66% 59% 74% 78% 69% 52% Hecht 46% 71% 72% 57% 69% 62% 75% O’Neill 54% 52% 68% 59% 56% 44% Wainwright 65% 61% 72% 73% 71% Brister 60% 59% 52% 64% Medina 65% 61% 53% Green 76% 64% Johnson 67% Non-Unanimous Cases Agreement on the Deciding Opinion
10. Opinion Stats Given One Joins, Odds of the Other Joining Solo WBJ NLH HON JDW SAB DMM PWG PJ DRW Jefferson 2% 54% 66% 60% 56% 68% 71% 65% 47% Hecht 6% 53% 40% 64% 67% 54% 62% 58% 68% O’Neill 9% 70% 43% 51% 51% 65% 54% 52% 40% Wainwright 6% 59% 64% 47% 58% 55% 63% 69% 63% Brister 7% 56% 68% 48% 59% 59% 54% 48% 59% Medina 1% 69% 56% 63% 58% 60% 57% 56% 50% Green 1% 79% 70% 57% 71% 60% 62% 77% 61% Johnson 6% 63% 57% 48% 69% 47% 54% 68% 57% Willett 10% 48% 71% 38% 66% 60% 50% 57% 60%
11. Solo WBJ NLH HON JDW SAB DMM PWG PJ DRW Jefferson 10% 23% 71% 39% 26% 42% 52% 48% 29% Hecht 20% 25% 9% 41% 50% 43% 32% 30% 45% O’Neill 33% 50% 18% 20% 25% 53% 30% 28% 18% Wainwright 30% 30% 37% 30% 30% 33% 33% 53% 40% Brister 21% 38% 42% 38% 28% 55% 32% 21% 43% Medina 5% 71% 48% 76% 67% 52% 62% 62% 48% Green 4% 78% 70% 52% 74% 65% 43% 78% 52% Johnson 21% 38% 38% 17% 55% 26% 38% 40% 33% Willett 44% 21% 41% 21% 35% 18% 15% 29% 32% Opinion Stats By Author: Odds of Each Other Justice Joining
12. Special Focus: Five-Vote Majorities Source: New York Times
13. Fall 2005 - Fall 2009 SCOTX had 39 five-vote majorities (and 5 more where visiting judges cast deciding votes). SCOTUS had 92 five-vote majorities. In this analysis, we tried to exclude “companion cases.” With that adjustment, SCOTUS had 79 that were unique. SCOTX had 37 that were unique.
14. Jefferson Hecht O’Neill Wainwright Brister Medina Green Johnson Willett 0 13 26 Wrote Joined Who Is in These Five-Vote Majorities?
15. Patterns of 5-4 Decisions
16. 1 1 1 1 1 1 1 1 1 1 1 1 1 1 2 2 3 3 20 35 U.S. Supreme Court Over the same time period, almost 70% of 5-4 decisions are one of two patterns
17. 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 2 2 2 2 2 2 2 3 4 Texas Supreme Court Much more variety in voting patterns in these 5-4 decisions ... compared to the U.S. Supreme Court
18. How did the Texas Supreme Court divide up in these 37 5-4 decisions?
19. The two most common 5-vote majorities 4 times 3 times
20. Most common sets of four? 3 more (7 total) (7 total) 4 more (7 total)
21. Most Common Sets of Three 11 times 10 times 10 times (These totals are within the 37 5-vote majority cases. There are 84 possible sets of three. Each would be expected 4.4 times.)
22. Other Common Sets of Three 9 times 8 times (These totals are within the 37 5-vote majority cases. There are 84 possible sets of three. Each would be expected 4.4 times.)
23. What is the only group of three Justices who never voted together in a 5-vote majority? But this group did join together in a 5-4 dissent. Harris County Hospital Dist. v. Tomball Regional Hospital, No. 05-0986 (Tex. 2009)
24. Which two Justices were most likely to join the same 5-vote majority? Next most likely pair? 17 times 15 times
25. Which two Justices were least likely to join the same 5-vote majority? Next least likely pair? 3 times 4 times
26. Looking for Patterns
27. U.S. Supreme Court
28. SCOTUS Voting Affinity (in 79 5-4 decisions)
29. Texas Supreme Court
30. Voting Affinity (in 37 5-4 decisions)
31. Voting Affinity (all non-unanimous cases)
32. Mandamus Practice
33. 0 60 120 180 240 300 2001 2002 2003 2004 2005 2006 2007 2008 2009 255 269 267 268 255 235 231 244 273 9.0% 6.5% 8.3% 10.1% 8.6% 1.3% 0.8% 3.3% 2.8% Mandamus Filings Mandamus Grant Rates Are Way Up, Filings Are Not
34. The Per Curiam Docket
35. 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 63 50 61 63 62 79 75 88 93 106 80 62 50 48 37 29 30 29 31 46 60 69 60 38 Signed Opinions Per Curiams Cases held over Per Curiams and the Docket