Yesterday Blawgletter received the Texas-only data from a recent essay on the "influence" of each state’s highest civil and criminal courts around the nation. We learned some tres interesting stuff.
Methodology. Let’s look at how the essay measured influence first. Jake Dear and Edward W. Jessen tallied all decisions, between 1940 and 2005, that the folks at Shepards desiginated as "followed" by another state’s highest civil or criminal court at least three times. It then ranked each state according to how often its court or courts of last resort met the three-or-more-times-"followed" criterion.
Some have criticized the methodology. Several supposed that it gives undue weight to rulings that expand liability — by, say, recognizing new causes of action. That, they suggested, explains the disproportionate number of liberal jurisdictions at the top. Places, in rank order for 1986-2005, like California, Washington, Massachusetts, Kansas (oops), New Jersey, Arizona (oops again), and Colorado (triple oops).
Paint us skeptical.
Limits on utility. No doubt the number of "followed" opinions over long periods tells us little. We can’t divine the ebbs and flows of influence from year to year or even decade to decade. Nor do we know how often a state’s decisions earned the disagreement, if not scorn, of other states’ judiciaries — as the "criticized" or "questioned" designations might reveal.
But, still, we do get at least some sense of which states’ courts consistently persuade other states’ courts to follow them, which do a middling job, and which seldom convince anybody.
T for Texas. Which brings us to that Texas data we mentioned at the outset. It shows a fascinating — and in its way encouraging — phenomenon: The Supreme Court of Texas (official site here) wielded by far the most influence during the six years when a balance of Democratic and Republican justices sat on it.
From 1940 until 2005, the Court issued 16 opinions that attracted the full agreement of a non-Texas high court on a point of law at least three times. The relevant decisions line up thus:
1940 — 1
1970 — 1
1984 — 2
1985 — 1
1993 — 1
1994 — 3
1995 — 3
1996 — 1
1997 — 1
1998 — 1
2001 — 1
As you can see, during the six years from 1993 through 1998, the justices rendered 10 of the 16 decisions that won three "followeds" in the 65 years between 1940 and 2005. That comes to 62.5 percent in less than 10 percent of the survey period.
Dems/Repubs. What made one six-year period so remarkable? Let’s add the number of Democrats/Republicans on the Court in each of those years:
1940 — 1 9/0
1970 — 1 9/0
1984 — 2 9/0
1985 — 1 9/0
1993 — 1 5/4
1994 — 3 5/4
1995 — 3 4/5
1996 — 1 3/6
1997 — 1 3/6
1998 — 1 3/6
2001 — 1 0/9
Hmmm. In every one of the years from 1993 through 1998, the Court’s composition included a substantial number of justices from each of the major political parties. And the Court’s two most prolific years, 1994 and 1995, happened just at the time of greatest uncertainty about which party would hold a majority.
The good news for balance on the Court unfortunately doesn’t obscure the overall bad news. As we reported recently, the original essay ranked the Texas high courts — including the Court of Criminal Appeals — fourteenth for 1940 through 2005 and twentieth for 1986-2005. But a fresh look at the data prompted the authors to adjust the rankings. Texas fell to twenty-seventh and twenty-third for the same periods, respectively, as a result. The UC Davis Law Review will soon publish the update.
What’ve we learned? Three things, we think. First, that having to listen to and consider colleagues’ differing views, as the Texas justices had to do from 1993 through 1998, produces higher quality decisions. Second, that, due to the extraordinary Court of 1993-98, the Court’s performance improved from the period 1940-1985 to the period 1986-2005. And, third, that making judges run for office in partisan elections may diminish their freedom to act as neutral arbiters.