3Q DAVID-GOLIATH INDEX

(Posted September 30, 2022) Where has the time gone? We’re already at the end of the third quarter of the 2022 calendar, so it’s time to check the latest results from Ninth and Franklin. This quarter I counted two wins for our Davids and four for Goliath. That brings the annual totals to five wins for the little guy and 16 for the big guy, producing a year-to-date D-GI of 24/76.

In my mind, the most interesting aspect of this report isn’t the ratio but the raw numbers. I just checked my 3Q 2021 report, and back then, David had prevailed 15 times against 30 wins for Goliath. That was 45 decisions – including published opinions and unpubs decided on the merits – last year at this time, against only 21 this year. In 2020, we had received 39 “qualifying” rulings by this point.

Don’t expect a burst of activity as the year starts the gun lap. We have only nine appeals currently in the pipeline – two still pending from the June session and seven argued earlier this month. Some of those won’t qualify for David-Goliath analysis – no identifiable little-guy-vs.-big-guy dynamic—so we likely won’t see 30 such rulings in the entire year.

That matters because of the importance of sample size. Stats geeks will assure you that until you reach a meaningful number of entries, you’re more likely to get a skewed result, like the baseball player who goes 3-for-4 on Opening Day and then brags that he’s batting .750 for the season. That would be a record, but it won’t hold up over the course of a full season.

Even so, this year’s results are in line with what we’ve seen in the past several court terms: The modern court is far more likely to rule in favor of the Goliaths who appear before it. That means far more likely than 50-50, and far more likely than the current justices’ judicial ancestors of less than a generation ago. (From 2005-09, the D-GI was 49-51, almost dead even.)