A LIBERAL OR CONSERVATIVE COURT?
[Posted July 13, 2015] Do you sense that the Supreme Court of Virginia’s rulings have been drifting in one direction or the other? Maybe you’re a plaintiff’s tort lawyer, and you think the court is moving noticeably to the right. Let me assure you, there are insurance defense lawyers who are convinced of the opposite. The same thing goes for those in criminal litigation – the defense bar probably thinks the justices are heartless conviction affirmers, while prosecutors might see them as bleeding hearts who are eager to put Bad Guys back on the streets. Both sides might see an alarming trend in recent decisions.
A STATISTICAL LOOK AT SCV VOTING PATTERNS
At least half of these opinions are bound to be wrong, of course. But if you have such a sense, how can you be sure you aren’t blowing a few prominent cases out of proportion? Who’s really right, and who’s wrong?
Actually, it turns out that there is a way to answer these questions. It only took the New York Times to show me how. On June 25, the Times’s Adam Liptak filed a story entitled, “The Roberts Court’s Surprising Move Leftward.” In the piece, he analyzed the number of “conservative” versus “liberal” decisions handed down by SCOTUS, tracking all the way back to the 1946 Vinson Court. He later updated the story on June 29 to include the last few cases handed down in the October 2014 Term, including King v. Burwell and Obergefell v. Hodges.
As you can guess from the article’s title, Liptak found that the Roberts Court has become more liberal than it was in its first few years. Now, please know that this is relative; this Court is far to the right of the Warren Court in the 1950s and 1960s. But when Liptak added up all the decisions, he concluded that this Term produced the highest percentage of liberal decisions since 1969, when Chief Justice Warren gave way to Chief Justice Burger.
It didn’t take long for this fascinating piece to trigger a sinister thought: Suppose we check the voting patterns in the Supreme Court of Virginia, to see whether this court is drifting? Is the SCV heading in one direction or another?
Unfortunately, while the state tracks and publishes a number of statistical reports on all levels of Virginia courts, those databases don’t include a breakdown of liberal-versus-conservative results in the SCV. One significant reason is that no one has established a system for describing what a “liberal” ruling is. But Liptak’s story plausibly claims that the social scientists can accurately measure that kind of thing. So why can’t we?
I decided to plunge into the one resource that held the key to this breakdown: the good ol’ Virginia Reports. After all, the court’s decisions are published, right? All you have to do is go through the volumes, one by one, and make a tick mark in one column or the other. Since I went back ten years, to 2005, it was a time-consuming project – don’t try this at home, or in any office where you have to record billable hours – but after crunching the numbers, I think we can answer the question.
I made certain assumptions in compiling these data. For example, I had to define what liberal and conservative decisions were. Some categories were easy; criminal law, for example. A decision in favor of the prosecution is conservative. Similarly, in tort contexts, a ruling in favor of the defendant or an insurance company is pretty much always conservative. Happily, once I got into the work I found this task to be easier than I had worried it might be.
Some case areas I had to omit entirely. In domestic-relations appeals, what’s a “liberal” outcome? I also ignored things like boundary-line cases and probate litigation, since there’s no obvious big-guy-vs.-little-guy aspect to those decisions. If I encountered a decision with a mixed result, where each party got a partial victory, I left that case out unless one side clearly got a major win and the other got only a small or technical victory. In a very few cases, I just had to use my judgment.
You might quibble with a few of my judgment calls, but with ten years’ worth of results, these statistics have, I believe, a very small margin of error. As Liptak did, if fewer than seven justices voted in the case, I assumed that the extra justices would have voted with the majority. It’s an artificial assumption, but it makes sense in context.
In addition to the liberal/conservative distinction, I decided to compile one other set of data: the voting breakdown, in the sense of unanimous cases or those with dissents. I calculated this without regard to whether the result was liberal or conservative; I just wanted to know how many times the justices reached complete agreement. Liptak’s story, and the accompanying graphics, included that, and I figured it wouldn’t be hard to do for Virginia.
Enough wind-up; here are the results:
YEAR CONSERVATIVE RULINGS UNANIMOUS
2005 52% 84%
2006 44% 81%
2007 48% 88%
2008 40% 81%
2009 54% 94%
2010 70% 93%
2011 65% 90%
2012 62% 79%
2013 64% 64%
2014 59% 61%
2015 (through 4 sessions) 74% 79%
You can see from this that for those on the liberal side of the aisle, 2008 was the high-water mark; they won 60% of the time that year. But overall, the court’s decisions roughly even out over the five year period from 2005 to 2009. It’s been dramatically different since then, as the conservatives have won about two-thirds of all reported SCV decisions starting in 2010.
As for unanimity, the court normally spoke with one voice until 2012, when Justices McClanahan and Powell started cranking out dissents. If you enjoy appellate spectacle, the last three-plus years have been vastly more fun than seeing a string of unanimous rulings.
I want to address one concern that you may have about the validity of these figures: the fact that they don’t control for the case posture. For example, they don’t distinguish between, say, an approved jury verdict and a grant of summary judgment, which would be on opposite ends of the standard-of-review spectrum.
Over time, the non-harmless errors made in trial courts ought to even out; plaintiffs ought to be the beneficiaries of such reversals just as often as defendants, especially with this much data. I’m comfortable that the sample size here is enough to dispel any suggestion that a given year’s numbers are a statistical anomaly; the five-year averages are definitely enough.
One thing that you absolutely, positively cannot call an anomaly is the Supreme Court’s obvious vector to the right. This pivot dwarfs the slight leftward tilt in SCOTUS; in that court, a truly liberal year is one in which the liberal side wins perhaps 55% of the time. The conservative side in Virginia is winning appeals at a rate that cannot be attributed to the incoming caseload or the quality of appellate counsel. This court has become sharply more conservative, and it’s overwhelmingly likely to stay that way for the next several years, given the relative youth of the current crop of justices.