Texas Supreme Court Voting Patterns (April 2014)

A presentation about voting patterns among the Justices of the Texas Supreme Court. This includes basic voting statistics, as well as a look at how some of those patterns have moved over time. The presentation ends with some of my research into amicus filings in the Texas Supreme Court.

Transcript

1. April 2, 2014
   Recent Changes at the 

   Texas Supreme Court
   (512) 853-9100
   don.cruse@texasappellate.com
   Don Cruse
   

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2. Previously…
   

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3. Austin Bar Appellate Section Talk
   

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4. 1
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   20
   35 U.S. Supreme Court
   Over the same time period,

   almost 70% of 5-4 decisions!
   are one of two patterns
   

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5. How did the Texas Supreme Court

   divide up in these 37

   5-4 decisions?
   

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6. The two most common 5-vote majorities
   4 times
   3 times
   

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   Texas Supreme Court
   Much more variety!
   in voting patterns!
   in these 5-4 decisions
   ... compared to the

   U.S. Supreme Court
   

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8. Looking for Patterns
   

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9. U.S. Supreme Court
   

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10. SCOTUS!
    Voting Affinity!
    (in 79 5-4 decisions)
    

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11. Texas Supreme Court
    

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12. Voting Affinity!
    (in 37 5-4 decisions)
    

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13. The Current Court
    

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14. There Have Been Fewer Close Cases
    2005-2009 Terms 2010-2014 Terms*
    * So far! (No spoilers.)
    • 39 cases with only 5 votes

    for the majority opinion
    • 34 cases with 6 votes

    for the majority opinion
    • 15 cases with only 5 votes

    for the majority opinion
    • 31 cases with 6 votes

    for the majority opinion
    • 3 more cases decided

    by a plurality opinion
    • 2½ cases decided

    by a plurality opinion
    

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15. Who was in the 5-vote majorities?
    In 5-vote cases only, 2005-2009 Terms
    

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16. Who was in the 5-vote majorities?
    In 5-vote cases only, 2010-2014 Terms
    Jefferson
    Hecht
    Wainwright
    Medina
    Green
    Johnson
    Willett
    Guzman
    Lehrmann
    Boyd
    Devine
    0 2 4 6 8 10
    Early Departures
    Late Arrivals
    

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17. Who was in the 5-vote majorities?
    In 5-vote cases only, 2010-2014 Terms
    

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18. Who was in the 5-vote majorities?
    In 5-vote cases only, 2010-2014 Terms
    2 times
    2 times
    In 5-vote cases only, 2010-2014 Terms
    

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19. Who was in the 5-vote majorities?
    1
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    1
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    1
    1
    1
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    1
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    2
    2
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    20
    35
    U.S. Supreme Court
    

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20. Who was in the 5-vote majorities?
    In 5-vote cases only, 2010-2014 Terms
    1
    1
    1
    1
    1
    1
    1
    1
    1
    1
    1
    2
    2
    In contrast to the US Supreme Court,
    almost no patterns even repeated themselves
    among the five-vote majorities on the
    Texas Supreme Court.
    

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21. Vote Patterns
    Opinions Issued in 2012-2013
    How often did each pair of Justices agree about the judgment, in
    those cases that drew at least one dissent?
    

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22. 25%: Johnson - Lehrmann 26.7%: Boyd - Jefferson
    80%: Boyd - Willett 75%: Green - Jefferson
    Vote Patterns
    Opinions Issued in 2012-2013
    In cases with a divided judgment, these pairs of Justices agreed on the
    result the least often:
    And these pairs agreed on the result the most often:
    

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23. Who Joins Separate Opinions?
    In cases with at least one separate opinion, 2012-2013
    Jefferson
    Hecht
    Green
    Johnson
    Willett
    Guzman
    Lehrmann
    Boyd
    Devine
    -10 -6 -2 2 6 10 14 18 22
    Concurrence
    Majority
    Concur/Dissent
    Dissent
    Chief Justice Jefferson, Justice Green, and Justice Johnson did not join
    any separate concurring opinions.
    Every Justice joined at least two dissents. Justice Lehrmann joined
    dissenting opinions most often, followed by Chief Justice Jefferson and
    Justice Willett.
    

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24. Who Joins Separate Opinions?
    In cases with at least one separate opinion, 2010 Term to present
    Jefferson
    Hecht
    Wainwright
    Medina
    Green
    Johnson
    Willett
    Guzman
    Lehrmann
    Boyd
    Devine
    Brown
    -35 -25 -15 -5 5 15 25 35 45 55 65 75 85
    Concurrence
    Majority
    Concur/Dissent
    Dissent
    

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25. The Court Over Time
    

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26. Jefferson
    Hecht
    Green
    Johnson
    Willett
    Guzman
    Lehrmann
    Boyd
    Devine 15%
    24%
    42%
    13%
    25%
    13%
    9%
    23%
    25%
    85%
    76%
    58%
    87%
    75%
    88%
    91%
    77%
    75%
    With Judgment Against Judgment
    Who Votes With the Judgment?
    Just in divided cases, 2012-2013
    

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27. 75.0%
    77.3%
    91.3%
    87.5%
    75.0%
    87.0%
    58.3%
    76.2%
    85.0%
    Who Votes With the Judgment?
    88.9%
    90.7%
    96.4%
    94.4%
    89.3%
    94.5%
    81.8%
    89.8%
    93.8%
    Divided Cases Only
    60%
    70%
    80%
    90%
    100%
    2013 2012 2011 2010 2009 2008 2007 2006
    75%
    85%
    87%
    76%
    58%
    75%
    88%
    91%
    77%
    Hecht Green Johnson Willett
    Lehrmann Boyd Guzman Devine
    Jefferson
    

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28. 75.0%
    77.3%
    91.3%
    87.5%
    75.0%
    87.0%
    58.3%
    76.2%
    85.0%
    Who Votes With the Judgment?
    88.9%
    90.7%
    96.4%
    94.4%
    89.3%
    94.5%
    81.8%
    89.8%
    93.8%
    Divided Cases Only
    60%
    70%
    80%
    90%
    100%
    2013 2012 2011 2010 2009 2008 2007 2006
    75%
    77%
    81%
    72%
    63%
    73%
    78%
    87%
    85%
    89%
    93%
    93%
    74%
    72%
    58% 59%
    76%
    75%
    75%
    52%
    79%
    88%
    88%
    85%
    68%
    65%
    91%
    74%
    90%
    89%
    77% 77%
    79%
    89%
    Hecht Green Johnson Willett
    Lehrmann Wainwright Guzman Medina
    Jefferson
    

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29. 75.0%
    77.3%
    91.3%
    87.5%
    75.0%
    87.0%
    58.3%
    76.2%
    85.0%
    Who Votes With the Judgment?
    88.9%
    90.7%
    96.4%
    94.4%
    89.3%
    94.5%
    81.8%
    89.8%
    93.8%
    Divided Cases Only
    60%
    70%
    80%
    90%
    100%
    2013 2012 2011 2010 2009 2008 2007 2006
    81%
    73%
    82%
    79%
    58%
    78%
    59%
    67%
    69%
    76%
    71%
    83%
    55%
    82%
    59%
    80%
    86%
    81%
    79%
    64%
    83%
    79%
    77%
    94%
    83%
    77%
    79%
    64%
    79% 79%
    92%
    88%
    80%
    72%
    71%
    84%
    Hecht Green Johnson Willett
    Wainwright Medina Jefferson O'Neill
    Brister
    

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30. 75.0%
    77.3%
    91.3%
    87.5%
    75.0%
    87.0%
    58.3%
    76.2%
    85.0%
    Who Votes With the Judgment?
    88.9%
    90.7%
    96.4%
    94.4%
    89.3%
    94.5%
    81.8%
    89.8%
    93.8%
    Divided Cases Only
    60%
    70%
    80%
    90%
    100%
    2013 2012 2011 2010 2009 2008 2007 2006
    81%
    73%
    82%
    79%
    77%
    58%
    78%
    59%
    67%
    63%
    73%
    78%
    55%
    82%
    59%
    80%
    93%
    74%
    72%
    86%
    81%
    79%
    64%
    75%
    77%
    81%
    72%
    69%
    76%
    71%
    83%
    85%
    87%
    85%
    88%
    93%
    76%
    58% 59%
    76%
    75%
    75%
    52%
    79%
    88%
    83%
    79%
    77%
    94%
    88%
    85%
    68%
    65%
    83%
    77%
    79%
    64%
    91%
    74%
    90%
    89%
    79% 79%
    92%
    88%
    77% 77%
    79%
    89%
    80%
    72%
    71%
    84%
    Hecht Green Johnson Willett
    Lehrmann Boyd Guzman Devine
    Jefferson Wainwright Medina O'Neill
    Brister
    

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31. 75.0%
    77.3%
    91.3%
    87.5%
    75.0%
    87.0%
    58.3%
    76.2%
    85.0%
    The Pattern for New Justices
    88.9%
    90.7%
    96.4%
    94.4%
    89.3%
    94.5%
    81.8%
    89.8%
    93.8%
    60%
    70%
    80%
    90%
    100%
    2013 2012 2011 2010 2009 2008 2007 2006
    85%
    87%
    85%
    88%
    93%
    76%
    58% 59%
    76%
    75%
    75%
    52%
    79%
    88%
    83%
    79%
    77%
    94%
    Willett Lehrmann Boyd Guzman Devine
    

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32. Looking for Voting Groups
    

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34. Clusters of Justices 2010-present (those with the most data)
    

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35. Current Justices*
    *There is not yet enough data to plot Justice Brown.
    2010-present (limited to current Justices)
    

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36. The Amicus Docket
    

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37. Data from

    May 2012
    At the federal
    level, there are
    many amicus
    filings at the
    cert stage.
    No one files
    amicus briefs
    after merits
    briefing.
    

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38. In Texas, amici
    can appear
    anytime, and do.
    Many wait until
    grant or even
    after a decision
    is issued.
    Data from

    May 2012
    

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39. Slides from a 

    May 2012 panel
    Having a swarm
    of amicus filings
    appear on
    rehearing is
    now a “thing.”
    

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40. Cases Attracting the Most Amicus Briefs
    Zachry Construction
    HMC Hotel v Keystone
    Bostic v Georgia-Pacific
    Kia Motors v Ruiz
    Boerjan v Rodriguez
    Hooks v Samson
    EPS v FPL Farming
    Richie v Rupe
    0 2 4 6 8 10 12 14 16 18 20 22
    1
    3
    1
    3
    2
    2
    1
    7
    7
    2
    3
    5
    2
    2
    2
    3
    3
    1
    4
    2
    10
    PFR BOM Grant Submitted Rehearing
    

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41. How does the presence of amicus
    filers affect the odds of getting a
    response request for a petition?
    Baseline for

    all petitions
    With an amicus!
    brief on file
    ~40%
    (~2% of petitions!
    had such a filing)
    85%
    

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42. How does the presence of amicus
    filers affect the odds of getting a
    request for full merits briefing?
    Baseline for

    all petitions
    With an amicus!
    brief on file
    ~25%
    (~7% of petitions!
    had such a filing)
    82%
    

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43. How does the presence of amicus filers
    affect the odds of getting a grant or
    summary disposition after briefing?
    Baseline for

    all petitions
    With an amicus!
    brief on file
    ~40% 55%
    (~18% of briefed cases

    had such a filing)
    

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44. How does the presence of amicus filers
    affect the odds of getting a grant or
    summary disposition after briefing?
    Baseline for

    all petitions
    With an amicus!
    brief on file
    ~40% 55%
    ~15%
    ~25%
    Grants
    Per Curiams ~8%
    ~48%
    Combined
    

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45. Thanks!
    Questions?
    

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