I posted a few weeks ago about a study of state supreme court influence that ranked California first — and Texas well down the list. I also responded to a post on Blawgletter that demanded, perhaps rhetorically, an explanation for Texas’s overall rank and for the seeming fall in that rank in the past two decades. I offered a few hypotheses, including one that sparked some controversy. (( I suggested that the way Shepards counts “follows” tended to rank common-law decisions higher than statutory-based decisions — and thus would tend to overweight courts that were expanding or contracting common-law doctrines rather than interpreting state statutes, such as those limiting tort recoveries.
I’m not sure that hypothesis will hold up once I can examine the data in more detail, but it made — and still makes — sense to me as a question of legal reasoning. A court deciding a pure common-law question can add to the legitimacy of its decision by looking outside state lines to find similar threads in the law. By contrast, a state court deciding a pure statutory question derives legitimacy by looking at the text and other tools for discerning legislative intent; how a sister state construed its own similar statute is (with the important exception of “uniform” laws), relevant only insofar as it informs the Court’s judgment about what the legislature intended the text to mean. The resulting decision isn’t “following” a sister court; it’s following the statute. ))
I later had a nice email exchange with one of the authors of that study, and I’m impressed at how generous the authors have been about sharing their raw data. A little earlier this week, they helpfully sent a case-by-case breakdown of the Texas cases. You’ll hear more about that when I’ve had a chance to look more closely.
I’m also impressed that Blawgletter not only requested the same data — but has already posted an analysis of what the data seems to suggest about the partisan composition of the Court. That’s quick work. And what he found was thought-provoking.
His thoughts, and my reactions, follow the break.
He focused on the decisions that attracted at least 3 “follows” designations from Shepards, which was one of the metrics used in the study. Between 1940 and 2005, the Texas Supreme Court produced 16 such decisions. The distribution over time, combined with a breakdown of the party affiliation of the judges on the Court (shown “Democrats/Republicans”):
- 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)
What’s striking to Blawgletter — and to me — is that a surge of these decisions happened around 1993. Before that time, Texas had very few “follows.”
I was curious, and I decided to turn up the sensitivity of this analysis, looking at cases with only 2 or more “follows” (instead of 3 or more). The results are consistent:
- 1940s — 1 (9/0)
- 1950s — 0 (9/0)
- 1960s — 4 (9/0)
- 1970s — 7 (9/0)
- 1980s — 5* (9/0) * these decisions preceded 1988
So, over those five decades, Texas had a total of 17 such decisions. In 1988, Chief Justice Phillips and Justice Hecht joined the Court and, as Texas’s political winds continued to shift, the Court slowly moved through a transition period toward its current composition:
- 1990 — 2 (7/2)
- 1992 — 1 (6/3)
- 1993 — 4 (5/4)
- 1994 — 6 (5/4)
- 1995 — 5 (4/5)
- 1996 — 4 (3/6)
- 1997 — 4 (3/6)
- 1998 — 3 (3/6)
In those years, spanning less than one decade, there were 19 of these decisions. The more recent statistics for 1999-2005 don’t yet show quite the same number of “follows,” but they remain on course to best the pre-1990 statistics:
- 1999 — 2 (0/9)
- 2001 — 2 (0/9)
- 2003 — 1 (0/9)
Blawgletter attributes the uptick in the 1990s to the partisan diversity of the Court during those years. Philosophically, the academic in me loves the idea that the clash of ideas on a “diverse” court leads to “better” decisions. I don’t, however, buy that “diversity” necessarily means partisan diversity; there can be a wide range of approaches to legal problems even on a 9-0 Court. Indeed, the current “9-0” Court has, with some frequency, ended up split 5-4 over the merits of decisions.
With that caveat, I find it impossible to argue with Blawgletter’s overall conclusion:
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.