Last week we looked at the frequently heard claim that getting Supreme Court review of an unpublished decision of the Court of Appeal is a hopeless task. This week, we’re looking at a similar bit of conventional wisdom – the Supreme Court doesn’t review unanimous decisions from the Court of Appeal.
In the table below, we report the year-by-year percentage of the Court’s civil decisions which had a dissenter at the Court of Appeal. In other words, if it’s true that the Court doesn’t review unanimous decisions, we would expect the graph line to be at or near 100% every year.
In fact, it’s nowhere close. Between 1990 and 1993, the share of the civil docket with dissents below was less than 20% every year. It rose a bit to 25.49% n 1994, 21.05% in 1995 and 20% in 1996, but then fell below 20% and stayed there until 2008. Indeed, in 1998, 2002, 2003 and 2005, less than one in every ten civil cases had a dissent below. The share rose to 22.5% in 2008, but then fell to 9.09% in 2009 and 7.14% in 2010. There was a two-year upwards blip beginning in 2011 to 27.27% in 2011 and 23.08% in 2012, but then it returned to long-term trend, below 20%. In 2017, only 19.05% of the Court’s civil cases had a dissent below. In 2018, it was 12.12%. Although the share rose to 20.83% in 2019, it has fallen back to single digits so far in 2020: 7.14%.
Join us back here next time as we review the Court’s criminal docket.