Thursday, March 07, 2013
Ind. Courts: Is It Too Early to Ask: Did Governor Daniels Reshape the Indiana Supreme Court?
Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law
Today marks Justice Rush’s three-month anniversary on the Indiana Supreme Court, which seems like an appropriate time to consider trends in Supreme Court decisions. As discussed in this January 29 post, the period since Justice Sullivan’s July 31, 2012, departure has been one of remarkable unanimity on the Indiana Supreme Court. From August through December of 2012, 95% (18/19) of the Court’s opinions were unanimous; the sole exception was a dissent from Chief Justice Dickson in a sentencing case.
Updating those statistics, the Court has issued twelve opinions so far in 2013, ten of which have been unanimous.* Therefore, since August 1, 2012 — the period during which half or more of the justices were appointees of Governor Daniels — the Court has been unanimous in more than 90% (28/31) of its opinions, which compares to a recent historic average of about 66%.
During that period the three Daniels’ appointees have been aligned and in the majority in every case. The most notable was yesterday’s Holiday Hospital insurance coverage opinion, which was written by Justice David, who was joined by Justice Massa and Justice Rush. Justice Rucker dissented, and Chief Justice Dickson wrote a concurring opinion agreeing in part with that dissent.
In a criminal restitution case, the other non-unanimous case, Chief Justice Dickson dissented from the majority’s view that remand was appropriate to allow the State a second chance to present evidence to support the victim’s property loss.
Although the focus above has been on Indiana Supreme Court opinions, Indiana jurisprudence is also shaped by cases where the Court denies transfer and allows the Court of Appeals’ opinion to serve as the final word on an issue. On that score, the Court’s denial of transfer in Wells v. State, a severance case, is noteworthy. The Court granted transfer on February 2, 2012, and heard oral argument on March 22, 2012. Nearly a year later, on February 21, 2013, the Court issued an order vacating transfer and reinstating the Court of Appeals’ opinion. Justice Rucker wrote a forceful dissent, joined by Chief Justice Dickson: “Passing on the opportunity to provide guidance and clarity on an area of the law in need of both, the majority declines to address the defendant’s arguments. I would grant transfer and do so.” I suspect the Rucker dissenting opinion would have been a majority opinion without the recent change in membership on the Court.
Nevertheless, the 90% unanimity rate in opinions is more remarkable than these minor differences. For example, after my January oral argument in K.W. v. State in which every justice asked questions and seemed to have a variety of different concerns, I was impressed but somewhat surprised by a unanimous opinion less than six weeks later. The justices are obviously working well together in crafting opinions that focus on common grounds for agreement. The high rate of unanimity stands in stark contrast to the opinions immediately after Chief Justice Shepard’s retirement and Justice Massa’s appointment, when only 50% of the opinions were unanimous and Justice Massa was in the minority in more than half of the cases.
*I have counted Gonzalez v. State as a unanimous opinion; Justice Rucker concurred in the result without a separate opinion.