October 30, 2014 • Dallas Federalist Society Lunch “Current Happenings at the Texas Supreme Court”

SCOTX News
 ✓J. Hecht became 27th Chief Justice–10.1.13 ✓ Longest-serving SCOTX Justice–1.26.14 ✓ New Court caboose: Justice Jeff Brown ✓ 4 Justices on the ballot: NLH, PJ, JSB, JVB ✓ New Court legal staff ✓ 2015 Legislature ✓ Rules ✓ Tweaking law clerk start dates

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Number of Cases Carried Over 2005 - 2014 Terms 10 20 30 40 50 60 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 47 50 57 45 26 38 5 7 12 6 Causes that have been argued but not yet decided are “carried over” to the next term. This year’s total of 6 petitions includes three that had been consolidated for oral argument (the gay- divorce case). * The Court’s official count for 2011 is that only 4 causes were carried over. My count includes Bison Building Materials v. Aldridge, No. 06-1084, which was abated on August 31, 2011 but reinstated to the docket the following week. *

How should advocates think about the Texas Supreme Court?

How should advocates think about the Texas Supreme Court? How does a Justice
 see the same process?

The obvious comparison

“We are not final because we are infallible, but we are infallible only because we are final.” Justice Robert Jackson

And these characters were surprisingly compelling…

SCOTUS is not seen by the bar as a monolith.

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SCOTUS Voting Affinity In the 5-4 decisions from 2005-2009

SCOTUS Voting Affinity In the 5-4 decisions from 2005-2009

SCOTX Voting Affinity In the 5-4 decisions from 2005-2009

4 times SCOTX Voting Affinity In the 5-4 decisions from 2005-2009 3 times

1 1 1 1 1 1 1 1 1 1 1 1 1 1 2 2 3 3 20 35 From 2005-2009, almost
 70% of 5-4 decisions are one of two patterns SCOTUS Blocs Are Clearly Defined

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 SCOTX Blocs Are Much More Varied

Along what lines does the Texas Supreme Court divide?

Jefferson Hecht Green Johnson Willett Guzman Lehrmann Boyd Devine Brown 0 2 4 6 8 10 12 14 16 Majority Concur Concur and Dissent Dissent Opinion Counts Justice Brown joined in October 2013, taking the place of Chief Justice Jefferson † † †

0 10 20 30 40 Per Curiam 9-0 Divided Cases Unanimous Concurrences Dissents from Judgment Distribution of Vote Counts

SCOTUSblog Stat Pack | October Term 2013 | Stat Pack | Thursday, July 3, 2014 Term OT05 OT06 OT07 OT08 OT09 OT10 OT11 OT12 OT13 Average Total - - 2 - - 2 - - - 0.44 Cases Affirmed by an Equally Divided Court Strength of the Majority Argument Sitting Strength of the Majority Strength of the Majority Strength of the Majority Strength of the Majority Strength of the Majority Strength of the Majority Strength of the Majority Strength of the Majority Strength of the Majority Decided 9-0 8-1 7-2 6-3 5-4 Average Strength of the Majority Number of Opinions Per Case October November December January February March April Summary Reversal 10 6 - 2 1 1 7.9 2.2 11 7 - 1 2 1 7.9 2.3 11 6 - 2 1 2 7.6 2.4 12 6 1 - 1 4 7.3 2.0 7 5 - 1 - 1 8.1 1.9 6 5 - - - 1 8.3 2.2 10 7 1 1 1 - 8.4 1.6 6 6 - - - - 9.0 1.2 73 48 2 7 6 10 8.0 2.0 Solo Dissents Justice Solo Dissents Solo Dissents Total (OT13) Average* (OT06-OT12) Ginsburg Sotomayor Roberts Scalia Kennedy Thomas Breyer Alito Kagan 1 1.1 1 0.8 - 0.0 - 1.0 - 0.1 - 2.0 - 0.4 - 0.6 - 0.0 2 6.4 Recusals Justice Recusals Total Kagan Breyer Alito Sotomayor Roberts Scalia Kennedy Thomas Ginsburg 2 1 1 1 - - - - - 5

SCOTUSblog Stat Pack | October Term 2013 | Stat Pack | Thursday, July 3, 2014 Term OT05 OT06 OT07 OT08 OT09 Total - - 2 - - Cases Affirmed by an Equally Divided Court Strength of the Majority Argument Sitting Strength of the Majority Strength of the Majority Strength of the Majority Strength of the Majority Strength of the Majority Strength of the Majority Strength of the Majority Strength of the Majority Strength of the Majority Decided 9-0 8-1 7-2 6-3 5-4 Average of the M October November December January February March April Summary Reversal 10 6 - 2 1 1 7 11 7 - 1 2 1 7 11 6 - 2 1 2 7 12 6 1 - 1 4 7 7 5 - 1 - 1 8 6 5 - - - 1 8 10 7 1 1 1 - 8 6 6 - - - - 9 73 48 2 7 6 10 8 G S R S Recusals Justice Recusals Total Kagan Breyer Alito Sotomayor Roberts 2 1 1 1 -

Distribution of Vote Counts 0 10 20 30 40 Per Curiam 9-0 8-1 7-2 6-3 5-4 Plurality Unanimous Concurrences Dissents from Judgment Cases in which fewer than 9 justices participate are classified as unanimous if they are unanimous, as 8-1 or 7-2 if they have one or two separate votes, and as 5-4 if they are 5-3. This considers In re Stephanie Lee to be a plurality because only four Justices joined with both the test and the judgment.

Distribution of Vote Counts 0 10 20 30 40 8-1 7-2 6-3 5-4 Plurality Unanimous (not shown) Concurrences Dissents from Judgment Cases in which fewer than 9 justices participate are classified as unanimous if they are unanimous, as 8-1 or 7-2 if they have one or two separate votes, and as 5-4 if they are 5-3. This considers In re Stephanie Lee to be a plurality because only four Justices joined with both the test and the judgment.

Distribution of Vote Counts 0 10 20 30 40 8-1 7-2 6-3 5-4 Plurality Unanimous (not shown) Concurrences (not shown) Dissents from Judgment Cases in which fewer than 9 justices participate are classified as unanimous if they are unanimous, as 8-1 or 7-2 if they have one or two separate votes, and as 5-4 if they are 5-3. This considers In re Stephanie Lee to be a plurality because only four Justices joined with both the test and the judgment.

Who Joins Separate Opinions? In cases with at least one separate opinion, 2013-2014 Hecht Green Johnson Willett Guzman Lehrmann Boyd Devine Brown -10 -6 -2 2 6 10 14 18 22 Majority Concurrence Concur/Dissent Dissent Justice Boyd joined dissenting opinions most often, followed by Justice Devine and Justice Lehrmann. 
 This Term had no “concurring and dissenting” opinions.

Hecht Green Johnson Willett Guzman Lehrmann Boyd Devine Brown With Judgment Against Judgment 82.6% 71.4% 87.0% 78.3% 73.9% 65.2% 60.9% 52.4% 76.2% Who Votes With the Judgment? Just in divided cases, 2013-2014

Vote Patterns Opinions Issued in 2013-2014 How often did each pair of Justices agree about the judgment, in those cases that drew at least one dissent?

Vote Patterns Opinions Issued in 2013-2014 How often did each pair of Justices agree about the judgment, in those cases that drew at least one dissent?

Vote Patterns Opinions Issued in 2013-2014 How often did each pair of Justices agree about the judgment, in those cases that drew at least one dissent?

Vote Patterns Opinions Issued in 2013-2014 How often did each pair of Justices agree about the judgment, in those cases that drew at least one dissent?

Looking for Voting Groups

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Clusters of Justices (2010-2013)

Clusters of Justices Fits with what you’d expect from 2010-2013* numbers… * This included the small number of divided opinions in the 2014 Term issued before April.

Clusters of Justices (2010-2013)

Clusters of Justices (2010-2013) Jan. 2013 Oct. 2013 Dec. 2012

Clusters of Justices (2013 only)

Clusters of Justices (2014 only)

The Court Over Time

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% 2014 2013 2012 2011 2010 76.2% 60.9% 85% 52.4% 76% 75% 77% 81% 72% 63% 73% 78% 78% 87% 85% 89% 93% 93% 74% 72% 65% 58% 59% 76% 75% 74% 75% 52% 79% 88% 71% 88% 85% 68% 65% 83% 91% 74% 90% 89% 87% 77% 77% 79% 89%

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 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%

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% 2014 2013 2012 2011 2010 2009 2008 2007 2006 76% 61% 85% 78% 87% 85% 88% 93% 52% 76% 65% 58% 59% 76% 75% 74% 75% 52% 79% 88% 83% 79% 77% 94%

The Role of Amici

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.

In Texas, amici can appear anytime, and do. Many wait until grant or even after a decision is issued. Data from
 May 2012

Active Cases With Most Amicus Filings Zachry Construction Rogers Shavano Ranch RSUI v Lind Deepwater Horizon EPS v FPL Farming Hooks v Samson Phillips v Carlson 0 2 4 6 8 10 12 14 16 18 20 22 24 26 28 7 2 1 1 7 3 7 1 3 2 2 2 3 3 4 11 11 PFR BOM Grant Submitted Rehearing

How does the presence of amicus filers affect the odds of getting a Baseline for
 all petitions With an amicus brief on file ~40% (~2% of petitions had such a filing) 85% Study done Nov. 2013

How does the presence of amicus filers affect the odds of getting a For those petitions in which some response is on file With an amicus brief on file ~50% (~7% of petitions had such a filing) 82% Study done Nov. 2013

Briefing Stage: Most Amicus Filings Kallinen v Houston Philadelphia Indemnity Occidental v Jenkins Edw. Aquifer v Jenkins In re Memorial Hosp Dallas v Albert SEIU v Janitorial Serv Dallas v TCI West End BCCA Appeal v Houston 0 2 4 6 8 10 12 14 16 18 20 22 24 26 28 3 2 2 2 2 2 2 4 4 1 2 PFR BOM Grant Submitted Rehearing

How does the presence of amicus filers affect the odds of getting a Baseline for
 all petitions With an amicus brief on file ~40% 55% (~18% of briefed cases
 had such a filing) Study done Nov. 2013

How does the presence of amicus filers affect the odds of getting a Baseline for
 all petitions With an amicus brief on file ~40% 55% ~15% ~25% Grants Per Curiams ~8% ~48% Combined Study done Nov. 2013

✤ Factual information outside the record as background or policy context ✤ Brief about practical effects of an opinion ✤ “Expert” brief (economist, etc.) ✤ “Highly technical” brief (for a technical case) ✤ Industry brief ✤ Offering a narrower way to approach the issue ✤ Offering a broader way to decide the case ✤ The surprising position brief: unexpected source ✤ Filling in for party briefs that were not adequate ✤ Brief by a government (OSG) Some types of amicus briefs