Study of State Supremes Shows Influence

Adam Liptak penned a Sidebar column today on a study of the influence that each of the 50 or so state supreme courts exerts over its brethren and sisteren. The big winner? The Golden State's highest court -- yes, the Supreme Court of California.

How did Blawgletter's home state judicial Olympians fare? Not so great. For the period 1940 through 2005, the Supreme Court of Texas ranks fourteenth despite sitting in the second biggest (after Alaska) and second most populous (behind California).

Now for the worse news: The court's standing fell to twentieth if one takes only 1986 through 2005 into account. One wonders how well the court would've done for 1940-1985 if 1986-2005 hadn't dragged down the ranking for the long sweep of 1940-2005.

We feel certain that Their Honors have an excellent explanation.

Comments

[Bob Smith]

Don Cruse over at SCOTX Blog has an excellent discussion and analysis of the potential weaknesses inherent in the methodology the study employed.

http://www.scotxblog.com/news-and-links/todays-article-about-state-supreme-court-influence/

He concludes the study actually wound up measuring a state supreme court's likelihood to expand common law doctrines, rather than the true jurisprudential respect accorded the court by its peers.

Blawgletter's take:
Mr. Cruse says in his post "I don't know, but I can offer one suggestion" for why the Texas Supreme Court's "influence" (20th) ranks so far below the state's population and size (2nd in both). He then makes a "guess" that "the study overweights decisions that expand common-law doctrines — such as tort law, privacy rights, and the like. By contrast, court decisions that contract such doctrines (such as tort reform) often cite as authority the state’s own idiosyncratic statutes rather than 'following' another state’s lead."

Mr. Cruse does not explain why expanding common law doctrines would have more influence than curtailing them would. Nor does he provide any evidence that the Texas court decides more than its share of cases under "the state's own idiosyncratic statutes".

Blawgletter's own guess goes the other way. Let's take class actions as an example. Since 2000, the court has led the nation in creating barriers to class actions. Did any of the decisions turn on a rule or statutory provision unique to Texas? No.

Why haven't courts outside of Texas "followed" the court's ever-narrower reading of the class action rule? Why hasn't the court's compelling analysis convinced its peers to rethink their conclusions? Perhaps because other state supreme courts find the Texas court's analysis, um, unpersuasive.

Which implies that the lack of influence isn't due to the idiosyncracies of Texas statutes but is attributable instead to the idiosyncracy of the justices' views.

[Don Cruse]

I haven't looked at the class action "follows" in particular, and I defer to your guess about that.

The rest of this comment is a little philosophical, so please bear with me. The "SCOTXblog" voice is a little more cautious about these conclusions than the "Blawgletter" voice.

My original point was about modes of argument --- not about political results. A court decision that asks "What did the Texas Legislature mean in this statute?" seems less likely to be "followed" by a sister state than a court decision that asks "What do we judges think would be a good rule of tort law?"

That's not because either, taken in a vacuum, is a better mode of reasoning. It's that common-law reasoning --- almost by its nature --- invites courts look beyond the state boundaries to try to discern some law "out there" to be followed. By contrast, statutory reasoning derives its legitimacy from the text. (Uniform laws are likely a third category.) I'll readily admit that statutory-construction arguments often look beyond the text --- but to make then strictly legitimate, those non-textual things are almost always filtered back through the lens of legislative intent. So, in the statutory context, an argument that "other state courts have all held X" is transformed into "the Texas Legislature surely meant to do X because other states have all decided X." Would a Shepards editor say that is "following" a sister state? My assumption was that Shepards would say no.

As for "expanding" versus "contracting" common-law doctrines ... I was relying on the Texas political experience of tort law: "The courts giveth; the Legislature taketh away." My assumption was that recent decisions contracting tort law would be more likely to be statutory decisions and thus less likely to be "followed." That isn't always the case, I'm sure, but it seemed to me to be a possible explanation for what you saw as a recent "decline" in the Court's influence.

I made a ton of assumptions in my theory --- and some or all may well be proven wrong.

In fact, the most recent post on Blawgletter (showing a sharp uptick in "followed" decisions from 1993 to 1998) really does start to cast my answer to your question into doubt.

But, by the same token, it also casts the question --- which was predicated on a "decline" in the Court's influence --- into doubt. The resurgence the data shows between 1993 and 1998 looks strikingly better than any period that came before. It's very interesting and deserves a deeper look.

I'll poke around the data a little more in the coming weeks and report back. If you do the same, I'll enjoy reading what you find.

Blawgletter's thoughts: Thank you, Don, for your persuasive comment.

We felt bad for citing the original study data as suggesting a "decline" in the Texas Supreme Court's "influence" since the 1940-1985 period. The authors' corrections make that suggestion inaccurate. As you gently point out, because the Court performed amazingly well from 1993 through 1998 (in terms of "followed" decisions), its "influence" averaged higher between 1986 and 2005. Unfortunately, its overall ranking fell in both periods relative to other states' high courts.

We find ourselves agreeing with your main point about statutory v. common law decisions. Framing the question as one of "what did the legislature mean?" rather than "what common law should we adopt?" may indeed affect whether Shepards will say another state's supreme court "followed" the Texas ruling. The assumption that it does have that effect strikes us as more than plausible.

We have the impression -- it counts as nothing more -- that the total number of the Court's common law rulings has not fallen recently and that therefore one would expect "influence" to stay about the same. The scant data we have for post-1998 -- one thrice-or-more "followed" opinion -- makes confident conclusions impossible. Probably someone should look at the number question. We nominate scotxblog.