DISSENTS OF THE BERCH COURT: EMPIRICAL ANALYSIS OF UNANIMITY IN A STATE SUPREME COURT.

Author:Morrow, Kevin M.
 
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"My brief judicial experience has convinced me that the custom of filing long dissenting opinions is one 'more honored in the breach than in the observance.'" --Justice E. White (1) INTRODUCTION

Rebecca White Berch took office as the forty-third Chief Justice of the Arizona Supreme Court on July 1, 2009. (2) She was the twenty-third person and the third woman to hold the office. (3) Justice Berch received her bachelor's degree in 1976, her law degree in 1979, and her master's degree in 1990, all from Arizona State University. (4) Berch began her career in private practice, later teaching legal writing at her alma mater, and served as State Solicitor General from 1991-1994. (5) She became First Assistant Attorney General in 1996 and served until her appointment to the Arizona Court of Appeals in 1998. (6) In 2002, Republican Governor Jane Dee Hull appointed Berch to the Arizona Supreme Court, where she remained until her retirement in 2014. (7)

During Berch's five-year tenure as chief justice, (8) the court issued 182 decisions; only six included a dissent. (9) In the same time period, the United States Supreme Court decided 409 cases, 205 of which had dissenting opinions, (10) a rate of dissent of 3.29% compared to 50.1% respectively. (11) For comparison, under Chief Justice Ruth McGregor, the court issued 153 decisions; 9 opinions were followed by a dissent, for a dissent rate of 5.8%. The first half of the current Bales court issued 101 decisions, with 15 opinions including a dissent, or 14.9%. The amount of dissenting opinions has therefore increased in the years since Bales replaced Berch as chief justice.

A significant goal of legal scholars is attempting to understand how judges reach their decisions. (12) In investigating the low rate of dissenting opinions under Chief Justice Berch, this Article examines the possible role of ideology in the split decisions, the subject-matter of the cases in question, and the relative importance of the divided opinions.

  1. BACKGROUND AND COURT STRUCTURE

    A court's formal structural arrangements have a strong influence on its rate of dissenting opinions. (13) Justices of the Arizona Supreme Court are appointed through a merit selection system, making them less likely to issue dissenting opinions. (14) Potential justices are screened and selected by a public committee and appointed by the governor; they are then subject to a retention election every four years. (15)

    In 2016, the Arizona Supreme Court increased from five to seven members. (16) While this increase would logically decrease the rate of unanimity, (17) the Arizona Supreme Court had one of the lightest workloads amongst all state high courts prior to its membership expansion (18) and issued more unanimous decisions than the average state supreme court. (19) The full impact of this change on the court's collegiality remains to be seen. (20) Since the membership expansion, the court has issued seventy-seven decisions; with seventeen opinions followed by a dissent, for a dissent rate of 22.1%. (21) While this is considerably more than the dissent rate in the Berch court, dissents were already on the rise before the court increased in size, with a pre-expansion dissent rate of 11.2%. (22) Therefore, the expansion of the court's membership is not the only explanation for the current decrease in unanimity.

    Scholars have long considered unanimity a stronger institutional value within the Arizona Supreme Court compared to the United States Supreme Court. (23) However, the court did not always demonstrate the unanimity in its decisions like it did during the Berch court. Under Chief Justice Thomas Zlaket in the late 1990s, the court issued dissenting opinions in 19.3% of cases; and under Chief Justice Stanly Feldman in the early 1990s, justices dissented in 16.8% of cases. (24) This trend peaked during the court's 1999-2000 term when 33% of cases featured a dissent. (25) The dissent rate then declined throughout the 2000s. (26) Figure 1 shows the dissent rate experienced by the last six chief justices calculated by dividing the total number of opinions issued during the chief justice's term and divided by the number of opinions that included a full or partial dissenting opinion. (27)

    Figure 1: Court Term Dissent Rate Feldman (1992-97) 16.80% Zlaket (1997-02) 19.30% Jones (2002-05) 20% McGregor (2005-09) 5.80% Berch (2009-14) 3% Bales I (2014-17) 11.20% Bales II (2017-present) 22.10% The court in the 1990s was called "dysfunction[al]," (28) and that the animosity between some justices created an "unpleasant working environment." (29) Under Chief Justice Zlaket (1999-2002), the court was criticized as a "very, very activist court." (30) Other issues during this time are attributed to Chief Justice Feldman's (1992-1997) repeated conflicts with Republican Governor Fife Symington. (31) Feldman, a Democrat, publicly opposed to legislation transferring juveniles to adult court and fought Symington's effort to dismantle Arizona's merit selection of judges. (32) Other issues include Chief Justice Feldman's fights with Justice Frederick Martone, a Symington appointee who often voted against Feldman. (33) Many of these cases feature acerbic remarks aimed at the opposing Justice. (34) After leaving the court, Justice Martone admitted that disputes sometimes got personal between himself and Chief Justice Feldman. (35)

  2. IDEOLOGY OF THE ARIZONA SUPREME COURT

    Ideological diversity on a court increases the likelihood of dissenting opinions, (36) and political ideology can impact judicial decision-making even on otherwise collegial courts. (37) While dissenting opinions of the Berch court were rare, they likely represent cases of particularly polarizing issues in order to cause a breakdown in the typical cordial unanimity and provide an opportunity to analyze the "liberal" and "conservative" leanings of the court by looking at decisions with a clear partisan breakdown into either a "liberal" or "conservative" majority.

    Determining what constitutes a "liberal" or a "conservative" majority decision requires a method to measure judicial ideology. One measure would be the political party registration of the justices, while another might by the ideology of the appointing governor. (38) Professors Bonica and Woodruff attempted to determine the partisan ideology of state supreme court justices using a scoring system where a number above zero indicated a more conservative-leaning justice, while scores below zero indicated a more liberal-leaning justice. (39) Their methodology examined justice's recorded campaign finance behavior or the score of their appointer when data was unavailable. (40) There have been few attempts by other researchers to determine whether Bonica and Woodruff's ideological measure is reflected in judicial decision making. (41)

    The ideological scores for the Arizona Supreme Court justices predictably followed the partisan registration of the justices and their appointing governors. (42) The resulting scores for the justices are: Scott Bales (-.93), Andrew Hurwitz (-.61), Ruth McGregor (-.15), Rebecca Berch (.24), Michael Ryan (.74), John Pelander (.75), and Robert Brutinel (1.04). (43) Justice Ann Timmer was not appointed at the time of the study; however, for justices who lacked sufficient campaign finance data, the score of the appointing governor was substituted. (44) Timmer therefore would receive a score of .751. (45) The ideological scores align with the justices' voter registration as Justices Bales, Hurwitz, and McGregor are registered Democrats while Justices Berch, Ryan, Pelander, Brutinel, and Timmer are registered Republicans. (46) Under this score structure, McGregor is identified as the most moderate justice and is the only member of the court to be appointed by a governor from the opposing political party. (47)

    Bonica and Woodruff's assessment of the Arizona Supreme Court appears consistent with the justices' general voting behavior, with one exception. Justice Ryan never authored nor joined a dissenting opinion during his career on the court and in some cases, he served as a swing vote with more "liberal" justices against his "conservative" colleagues. (48) This behavior suggests that Justice Ryan maintained a more moderate position on the court than represented by his ideological score. For comparison, Justice Kennedy, widely considered the most moderate justice on the United States Supreme Court, also authors the fewest dissenting opinions. (49)

    Although the Arizona Supreme Court produces few dissenting opinions for examination, (50) these cases can reveal the views of an individual judge. Judges' decisions to take sides on important issues often reveal ideological or personal motivations that influence their voting. (51) Dissenting judges do not need to compromise on their views and can instead fall back on their ideological perspectives. Although called "as nonpolitical as the courts can be," (52) during the Berch court, a clear partisan clash can be seen each time the court narrowly decided a case 3-2; twice with a conservative majority and once with a liberal majority. (53) The other three decisions contained a single dissenter. (54)

  3. ARE DISSENTING OPINIONS SALIENT?

    Judicial decision-making behavior can be affected by characteristics such as the case facts, the litigants involved, or the subject-matter of the case at hand. (55) Among court cases, "it is clear that some are more important than others, to outside observers, to potential litigants, and to the justices themselves." (56) A case's relative notability, or salience, is one important trait that can affect judicial decisions. (57) Some scholars suggest that salient cases enhance the role of ideology and the pursuit of policy preferences. (58) This leads to the question of whether salient cases lead to less unanimity or whether the very nature of a dissenting opinion can make a case more salient. For comparison, at the United...

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