We also saw that in those divided criminal cases in which only one Judge dissented, most of the time it was Judge Jenny Rivera who had authored the lone dissenting opinion. Moreover, she sided with the accused in each of her sole dissents.
Let's now take another look at how frequently Rivera and her colleagues have been dissenting, whether in criminal or civil appeals. We did that earlier in this series. (See Part 1.) Here's that same data, just a bit reorganized and highlighted in the following graph:
(click on any graph to enlarge)
As reflected again in this graph, Judge Rivera--the sole pro-accused dissenter in most of the single dissent cases--has been the Court's most frequent dissenter. And again, by a wide margin.
Not surprisingly then, her record has been the most pro-accused of the Judges--once again, by a wide margin. Here's a reorganization of some data we've seen before to help with our present focus:
No other Judge on the Court comes close to judge Rivera in siding with the accused. Indeed, she compiled a record nearly 3 times as pro-accused as that of the Court as a whole. But more relevant to the observation being offered here, the record of the Court as a whole as seen in this graph, 35% pro-accused, is that the majority only adopted the more pro-accused position approximately one third of the time.
Of course, it might be argued that Judge Rivera's record is extreme, that her tendencies lean so far in favor of the rights of the accused, that her votes skew the data. (To be sure, Judge Rivera's record evinces unmistakable leanings toward vigorous protection of the rights of the accused. But a fair reading of her opinions hardly suggests extreme positions.) However, her pro-accused record is more than counterbalanced by that of two of her colleagues, Judges Michael Garcia and Eugene Pigott, at the other end of the Court's spectrum--i.e., 0% and 18% pro-accused, respectively.
Moreover, take a look at the total votes cast in divided criminal cases. That is, the cumulative number of votes cast by the Judges for the more pro-accused position and the more pro-prosecution position. This takes into account the votes within the most pro-accused and the most pro-prosecution records among the Judges, as well as the votes cast by every other member of the Court.
What about the non-criminal cases?
Let's start just as we did with the criminal decisions. Look again at the data on dissents. During this period, Judge Rivera was followed by Judge Eugene Fahey as the Court's most frequent dissenter. In criminal appeals, his record was half as pro-accused as Judge Rivera's, but it was still on the more pro-accused side of the Court. As for the civil cases, take a look:
As we did with the records in criminal cases, let's look at the cumulative number of votes cast by the Judges in the divided civil cases:
This graph reflects all the votes by all the Judges in the divided criminal and civil cases combined. It reflects the total votes of the Judges with the most liberal records (i.e., pro-accused, and pro-worker, consumer, tenant, etc.), those Judges with the most conservative (i.e., pro-prosecution, and pro-employer, business, landlord, etc.), and those Judges with records in between. To be brief: half again as conservative as liberal.
Sooooo, this is the record of the early DiFiore Court. The votes and the resulting decisions have generally been conservative.
[To those who are wondering: yes, in future posts I will be updating all that we've been discussing to include what the Court does in the remaining months of the first year of the DiFiore Court.)
One final point. Lest any of the foregoing be misconstrued, the observations here are not about the Court's being right or wrong, wise or foolish, or the same or different than I would have preferred. The observations are simply what the data can reveal, which is that the Court's record has been more conservative than liberal.
[Disclosure: I would have been somewhat more liberal, especially in the civil cases.]
One last observation in the next post.