The Court’s 2009-2010 Term began on September 1, 2009. Through February 18, 2010, the Court has decided 30 criminal cases. A link to a roster of the cases appears in the sidebar.
In the first half of the term, we’ve seen some sharp contests and heated debate from the Court (think: Peck contretemps). Perhaps it is mostly the rhetoric, but this year’s iteration of the Court feels more like SCOTUS — the defined blocs, the clustering around ideological poles — and less like the avuncular, genial Minnesota Supreme Court that I seem to recall. (And, indeed, after this post was completed, but while we were pending launch, Rochelle Olson of the Star Tribune wrote this about the Court’s tilt rightward.) To establish empirically that this Court is more divided than its predecessors, we would need to examine historical data, something we hope to do in upcoming posts. Today, however, we focus only on this terms’ cases. This focus will not permit us to make comparative statements, but it should still afford us some insight into this Court’s particular synergy.
We begin by looking at the entire pool of cases decided through February 18th. The Justices voted unanimously for the outcome in 19 of the 30 cases. That’s a unanimity rate of 63%.
|Unanimous in signed opinion||18|
|Unanimous in final vote (at least one concurrence)||1|
|Split decision (at least one dissent)||11|
A deeper fissure is suggested if we separate the 1st degree murder direct review cases from the Court of Appeals discretionary review cases. No winnowing of the issues takes place before the direct review cases reach the Court; the cases are there by virtue of their status and not necessarily because they present consequential legal issues, though, of course, some of them do. Nevertheless, as a class, they ought to be more susceptible to consensus than the discretionary review cases. The statistics say they are. Seventy-two percent of the direct review cases were decided by a unanimous Court (defined, again, as unanimity in the final vote). Only 50% of the discretionary review cases were decided unanimously.
The following chart tracks individual Justices’ frequency in the majority for all criminal cases, unanimous and split, direct and discretionary. Justices Magnuson, Gildea and Dietzen voted with the majority (and with each other) 100% of the time. Justice Page dissented at the highest rate.
Frequency in the majority, all cases
|Justice||Majority votes||Total Votes||% in majority|
Next we look at frequency in the majority in the split vote cases, i.e., the cases in which there was at least one dissent. We’ve already noted that these cases constitute just 37% of the total, but include a disproportionate number of the Court of Appeals cases — generally speaking, the more contentious cases, since the Court’s election to hear them signals the Court’s view that there is something unsettled or unclear in the law. In the cases in which they could not agree, the Justices disagreed with remarkable consistency. There is a marked 4-2 split on the Court, with Justices Magnuson, Diezen, Gildea and G. Barry Anderson on one side and Justices Page and Paul Anderson on the other. There is a less pronounced but still regular 4-3 split that occurs when Justice Meyer joins the minority voters. It seems a stretch to characterize Justice G. Barry Anderson as a swing voter, at least based on his voting pattern this term. Statistically, Justice Meyer may look like a swing — her vote is less predictable than the others’ — but we think of a true swing voter as one whose vote will sway the outcome, and given the consistent voting pattern of the four-Justice majority bloc, Justice Meyer’s vote seems unlikely to have had that effect.
Frequency in the majority, split vote cases
|Justice||Majority votes||Total votes||% in majority|
As I noted at the top of this post, the rhetoric from this term sticks in our minds, but we cannot say empirically whether the 37% split vote figure represents a significant change in the Court’s behavior until we compare the statistics from other years. But assuming for the moment that we are seeing a more divided Minnesota Supreme Court, at least in criminal cases, how should we think about this? Do we want the Minnesota Supreme Court to behave like the U.S. Supreme Court? How analogous are the two institutions’ roles? Do they have comparable responsibilities to the trial and intermediate appellate courts? Is there a distinct judicial philosophy that resides at the new center of gravity on the Court? If so, what is it?