Yesterday, we showed that the Supreme Court regularly reviews roughly three civil cases which were unanimous decisions at the Appellate Court for every decision which had a dissenter below. Today, we’re looking at a similar question – how often does the Court review unpublished decisions?
Between 1990 and 1995, the share of published cases below on the Court’s civil docket was generally in the low eighty percent range. But in 1996, it fell to 61.82%. In the following years, the published share was 60.32% (1997), 66.2% (1998) and 73.17% (1999).
The published decisions’ share of the civil docket edged up a bit from 2000 to 2009. In 2001, only 56.86% of the civil docket had been published below. But that share rose to 72% (2002), 80.43% (2003), 74.07% (2004), 68.75% (2005), 87.76% (2006), 70.73% (2007), 95.24% (2008) and 80.49% (2009).
The published share of the docket remained quite high from 2010 to 2013 – 87.88% (2010), 94.74% (2011), 85% (2012) and 91.18% (2013), before falling back closer to its long-term trend. In 2014, only 55.56% of the civil cases were published below. In 2015, that rose to 79.55%. The following year, it was 67.86%. In 2017, 92.31% of the civil cases were published below, but in 2018 and so far in 2019, the share was down to 77.27%.
In our final table, we report all the data for the thirty years together. What we see is that the share of published cases on the civil docket seems to have increased a bit across the past two decades. From 1990 to about 2006, the civil docket’s share of published cases from the Appellate Court tended to be somewhere between sixty and eighty percent. From 2006 to 2013, the share increased, generally to between eighty and ninety-five percent. The share dropped sharply in 2014 to 55.56%, but across the past three years, there is some inclination that it may be returning to something like the 2006-2013 level. So the bottom line is that while anywhere from ten to thirty percent of the Supreme Court’s civil decisions each year were unpublished at the Appellate Court, it’s true that publication is enormously helpful to getting review.
Join us back here next Tuesday as we turn our attention to a new topic.