Dissents of the Berch Court: Empirical Analysis of Unanimity in a State Supreme Court

By Morrow, Kevin M. | Albany Law Review, Summer 2019 | Go to article overview

Dissents of the Berch Court: Empirical Analysis of Unanimity in a State Supreme Court


Morrow, Kevin M., Albany Law Review


"My brief judicial experience has convinced me that the custom of  filing long dissenting opinions is one 'more honored in the breach than  in the observance.'" --Justice E. White (1) 

INTRODUCTION

Rebecca White Berch took office as the forty-third Chief Justice of the Arizona Supreme Court on July 1, 2009. (2) She was the twenty-third person and the third woman to hold the office. (3) Justice Berch received her bachelor's degree in 1976, her law degree in 1979, and her master's degree in 1990, all from Arizona State University. (4) Berch began her career in private practice, later teaching legal writing at her alma mater, and served as State Solicitor General from 1991-1994. (5) She became First Assistant Attorney General in 1996 and served until her appointment to the Arizona Court of Appeals in 1998. (6) In 2002, Republican Governor Jane Dee Hull appointed Berch to the Arizona Supreme Court, where she remained until her retirement in 2014. (7)

During Berch's five-year tenure as chief justice, (8) the court issued 182 decisions; only six included a dissent. (9) In the same time period, the United States Supreme Court decided 409 cases, 205 of which had dissenting opinions, (10) a rate of dissent of 3.29% compared to 50.1% respectively. (11) For comparison, under Chief Justice Ruth McGregor, the court issued 153 decisions; 9 opinions were followed by a dissent, for a dissent rate of 5.8%. The first half of the current Bales court issued 101 decisions, with 15 opinions including a dissent, or 14.9%. The amount of dissenting opinions has therefore increased in the years since Bales replaced Berch as chief justice.

A significant goal of legal scholars is attempting to understand how judges reach their decisions. (12) In investigating the low rate of dissenting opinions under Chief Justice Berch, this Article examines the possible role of ideology in the split decisions, the subject-matter of the cases in question, and the relative importance of the divided opinions.

I. BACKGROUND AND COURT STRUCTURE

A court's formal structural arrangements have a strong influence on its rate of dissenting opinions. (13) Justices of the Arizona Supreme Court are appointed through a merit selection system, making them less likely to issue dissenting opinions. (14) Potential justices are screened and selected by a public committee and appointed by the governor; they are then subject to a retention election every four years. (15)

In 2016, the Arizona Supreme Court increased from five to seven members. (16) While this increase would logically decrease the rate of unanimity, (17) the Arizona Supreme Court had one of the lightest workloads amongst all state high courts prior to its membership expansion (18) and issued more unanimous decisions than the average state supreme court. (19) The full impact of this change on the court's collegiality remains to be seen. (20) Since the membership expansion, the court has issued seventy-seven decisions; with seventeen opinions followed by a dissent, for a dissent rate of 22.1%. (21) While this is considerably more than the dissent rate in the Berch court, dissents were already on the rise before the court increased in size, with a pre-expansion dissent rate of 11.2%. (22) Therefore, the expansion of the court's membership is not the only explanation for the current decrease in unanimity.

Scholars have long considered unanimity a stronger institutional value within the Arizona Supreme Court compared to the United States Supreme Court. (23) However, the court did not always demonstrate the unanimity in its decisions like it did during the Berch court. Under Chief Justice Thomas Zlaket in the late 1990s, the court issued dissenting opinions in 19.3% of cases; and under Chief Justice Stanly Feldman in the early 1990s, justices dissented in 16.8% of cases. (24) This trend peaked during the court's 1999-2000 term when 33% of cases featured a dissent. (25) The dissent rate then declined throughout the 2000s. …

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