Brown’s impact: Baxter to Cuéllar

That's the title of the third and final article in Kirk Jenkins' series in the DJ about the Cal Supreme Court.

Throughout this series, we've evaluated the impact of a Brown justice by comparing how frequently the new and the retiring justices were in the majority of 4-3 decisions. Although the court has had few 4-3 decisions in recent years, both Justice Baxter and Justice Cuéllar have been critical to the outcome of several closely divided cases. Justice Baxter was in the majority of only two 4-3 civil decisions in his last three years; in both cases, the conservative result prevailed. On the criminal side, Justice Baxter joined the majority in nine of 10 4-3 criminal decisions in those years, with the prosecution prevailing in seven of those nine cases by one vote. Justice Cuéllar provided the fourth vote for a 4-3 majority in five of the seven 4-3 civil decisions between 2015 and 2017. Four of those were liberal outcomes to only one conservative. Justice Cuéllar was less decisive on the criminal side, however, joining the majority in three of five 4-3 criminal cases. All three of those cases involved a prevailing defendant.

• Justice Baxter's closest philosophical match on the civil side was Justice Ming Chin. 
• Justice Cuéllar's closest match on the civil side was Justice Liu, with whom he had a 96.3 percent agreement rate in 2015, 94.44 percent in 2016 and 90.48 percent in 2017. 
• Justice Cuéllar tends to be a relatively heavy questioner, and once again, he is an outlier as far as the rule we're testing. In civil cases, Justice Cuéllar asked more questions of the losing party in 57.14 percent of cases. In criminal cases, he asked more questions of the losing party in 54.84 percent of cases.

Also worth reading, the latest issue of the ABA's Appellate Issues is available here.
And see the CLA Litigation Section's February 2019 Litigation Update.
On the lighter side, see 'Meh': Apparent Note-to-Self Makes It Into Published Federal Decision