A divided court in more ways than one: the Supreme Court of Delaware and its distinctive model for judicial efficacy, 1997-2003.

• Author: Feldman, Adam D.

1. INTRODUCTION

   In recent years, the nation's focus on judicial affairs tends to concentrate on the most identifiable level, namely the Supreme Court of the United States. Most notably within the past year, the Supreme Courts' decisions in Grutter v. Bollinger (1) and Lawrence v. Texas (2) have fundamentally changed both society's accepted liberties and the public's view of judicial affairs. This focus, however, unnecessarily overshadows a basic reality of the United States legal system: that these historic decisions often originate in state courts.

   The nation's state courts of last resort are as distinctive as their respective host states. Internally, a state's highest court can also be considered reflective of the individual judges that make up a quorum on a daily basis. In the current era, defined by what can justifiably be called a perpetually litigious society, state courts continue to preserve distinguishing qualities. By focusing on the high court of one particular state, it is possible to examine court structure, pressing topical issues, and voting patterns among individual judges. As one of the more unique courts of last resort in the country, the Supreme Court of Delaware provides an optimal specimen for analysis. (3)

   This high court study examines the separate opinions issued in divided cases by the justices of the Supreme Court of Delaware from 1997-2003. (4) In a closed universe study of a single court, divided cases are the most effective media for insight because they help define the internal roles within the collective. (5) While the primary goal of this study is to identify these roles through statistical analysis of voting trends, the analytical portion of this study devotes additional consideration to several environmental issues including: whether a true majority exists in the court; whether the Supreme Court of Delaware is a reliable model for judicial efficiency or judicial economy; and whether the court's bipartisan composition is at all responsible for apparent efficiencies. These are some of the issues addressed in the forthcoming analysis.

   As demonstrated by the discussion in Part II, divided opinions are particularly relevant in Delaware in light of its unique court structure. (6) Part III of this study will outline the methodological process utilized in conducting the relevant statistical research. (7) Part IV introduces sources of division in three topical areas of case law. (8) In Part V, the voting patterns of each justice will be examined in a topical context. (9) Finally, in Part VI, the study will conclude with a summary of pertinent trends and a forecast of future voting behavior. (10)

2. UNIQUE ATTRIBUTES OF THE DELAWARE COURT SYSTEM

   In general, separate opinions are considered highly probative of current judicial trends and individual tendencies of the judges who sit on a single state court. (11) A unanimous decision by a court often reflects a compromise rather than an absence of varying opinions on an issue. (12) A divided decision, on the other hand, typically enunciates "'a statement by the judge as an individual'" (13) symbolic of unique individual beliefs and attributes. (14)

   While separate opinions benefit an analysis of any jurisdiction, they are particularly relevant to a study of the Supreme Court of Delaware because that court rarely issues non-unanimous opinions. (15) For example, in 1995, the Supreme Court of California issued multiple opinions in over seventy percent of its cases, and the Supreme Court of Indiana stood divided in approximately thirty-five percent of its decisions. (16) In contrast, throughout the fifty-year history of the Supreme Court of Delaware, its justices have written separate opinions at an average of three percent of each year's reported cases--this translates to less than one percent of the entire year's docket. (17)

   This sensation--dubbed Delaware's "unanimity norm" (18)--is thought to be based on a variety of factors, including: the small size of the state and of the Supreme Court of Delaware's bench; Delaware's judicial appointment system; the Supreme Court of Delaware's mandatory jurisdiction; and the court's unique internal operating procedures. (19)

   With respect to court size, the court is comprised of one Chief Justice and four Justices, all of whom are nominated by the governor and confirmed by the state senate. (20) The court's five justices sit both in panels or en banc: the effect of the structure of Delaware's judicial system is that, unlike larger courts--which have all cases en banc--most cases are initially heard in three-member panels, thus decreasing the chance of divided decisions. (21)

   The second consideration is Delaware's system for judicial selection. Forty-eight states label their highest court "supreme court," but many states differ with respect to procedures for filling the bench. (22) Six states utilize "partisan elections," fifteen states choose "nonpartisan elections," seventeen states hold "uncontested retention elections" following an initial appointment, and the other twelve states use either life tenure or "reappointment of some type." (23) Delaware is one of the few states placed in the illusory category, "reappointment of some type," and it is even further distinguishable from the norm as the only staggered appointment bipartisan judiciary in the United States. (24) In Delaware, three of the five justices of the Supreme Court must represent one of the major political parties, while the other two must represent the other major political party. (25) Currently, there are three Democratic and two Republican justices on the court. (26) The court's bipartisan composition was introduced in order to "eliminate political influence from the judiciary to the fullest extent possible" by taking elections out of the equation. (27) All justices of the Supreme Court of Delaware are appointed for twelve-year terms. (28)

   A third factor that may be contribute to Delaware's so-called "unanimity norm" is the court's mandatory jurisdiction. Delaware's courts are divided by jurisdictional grants and limitations. (29) The Supreme Court has final appellate jurisdiction for criminal cases where the sentence is death, when imprisonment exceeds one month, when a defendant is fined more than one hundred dollars, and in all civil actions from the Court of Chancery, Superior Court, and Family Court. (30) However, since Delaware does not generally have intermediate appellate courts, "the jurisdiction conferred by the Delaware Constitution and enabling statutes effectively requires the Delaware Supreme Court to hear and decide every appeal that is filed from a final judgment entered by the Superior Court, the Family Court, and the Court of Chancery." (31) Therefore, a premium is placed on consistency and unanimity. (32)

   The last, and possibly most telling factor is the court's internal operating procedures, which in effect limit the opportunities for regular separate opinions. (33) As previously mentioned, cases are typically heard in three-justice panels. (34) Cases are randomly assigned so that each panel and each justice receive roughly the same caseload. (35) Moreover, the court's procedures for deciding cases and issuing opinions focus largely on cooperation and compromise-which often translates into unanimity. (36) While this highly organized system for disposition of pending matters is impressive and advanced, it also accounts for the scarcity of divided opinions from the court.

   In addition to the aforementioned factors, several other issues should be considered when examining the voting trends of the Supreme Court of Delaware. The court is currently in a unique phase in its evolution. First, because of Delaware's bipartisan judiciary, minor changes within the court's membership could potentially alter state law. For example, it is possible that there will be a shift from the court's current Democratic majority in the next few years. During the relevant time period for this study, Justices Steele and Jacobs--both Democrats, replaced retiring Justices Hartnett and Walsh, (37) and Justice Holland was reappointed. (38) Thus, the court's current political makeup consists of three Democrats Justices Berger, Jacobs, and Steele and two Republicans Justices Veasey and Holland. (39) Chief Justice Veasey's impending retirement (40) will not alter the political climate of the court since constitutional requirements prescribe another Republican appointment; however, the expiration of Justice Berger's term in 2006 (41) allows the possibility of a replacement from either party and thus may yield a new Republican majority.

   Additionally, a cornerstone of Delaware law involves maintaining predictable and reliable laws and proceedings. (42) This study, therefore, will examine whether such goals have been achieved as the court passes through a "changing of the guard" period. (43)

3. METHODOLOGY

   The scope of this study includes all cases in which separate opinions were filed by justices of the Supreme Court of Delaware from 1997-2003. In addition to examining voting patterns of the justices who joined in majority opinions and/or filed separate dissents or concurrences, votes of justices who joined in each separate dissenting and concurring opinion are also analyzed. (44)

   In assessing the decisions of Delaware's high court, electronic databases such as Lexis Nexis and Westlaw were utilized to compile selected case law. After performing a thorough preemptory check on the issues pertinent to this study, searches were performed to find all published opinions from the court containing either a dissenting or concurring opinion. From 1997-2003, the Supreme Court of Delaware published twenty-nine divided cases (45) containing a total of thirty-eight separate opinions. (46) Of these opinions, twenty-six were in dissent and the remaining twelve were concurring opinions or statements. (47)

   A review of the relevant case law revealed that there...