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Best Courts (and Worst)?

Which are the best state high courts? It depends on what you mean by "best." Suppose you think the best courts are those that write the most influential opinions -- are cited the most by out-of-jurisdiction courts. Then the best are California, Delaware, and Montana. The worst are Missouri, the Texas criminal high court, and the Oklahoma criminal high court. (Texas and Oklahoma have separate civil and criminal high courts.)

Suppose you think the best courts are those that publish the most opinions. Then the best are Georgia, Mississippi, and Arkansas. The worst are North Carolina, Delaware, and New Mexico.

Maybe the best courts are those that are most independent (which we define to mean that partisan differences among judges have little effect on outcomes). Then the best are Rhode Island, New York, and Oregon. The worst are Connecticut, Indiana, and Michigan.

And overall? If you (arbitrarily?) give equal weighting to the three measures, the best are California, Arkansas (!?), and North Dakota. The worst are Missouri, the Oklahoma criminal court, and Michigan.

Such is what I found, with two colleagues, when we crunched the numbers taken from 1998-2000. One might compare our rankings with this one and this one. What do practitioners think? If you have practiced in front of any of these courts (or have a sense of their reputation), please let me know in the comment section what you think of these rankings. (Remember: high courts only, not the entire judicial system for a state.) Judges seem not particularly happy about them (except for these ones).

FlimFlamSam:
I doubt there is a single practitioner out there with enough experience in front of enough different state courts of last resort to do much more than compare two or three.

I will say that I think EXTREMELY highly of the Michigan Supreme Court as presently constituted, and I am not a Michigan lawyer.
9.13.2008 11:34am
SpenceB:
...the best courts are those most successful at achieving justice.

Odd that the word 'justice' didn't even come up in the evaluation criteria, but that's probably a nod to reality.
9.13.2008 11:39am
NaG (mail):
SpenceB: Probably because no one can agree on what "justice" entails.

Personally, I think the "best" court would naturally be the one that is cited by other courts most often, since that court's thoughts and decision-making process are strong enough that other judges, who are not bound by those decisions, still think the opinion presented is strong enough to allow it to persuade them.

However, Delaware has a natural advantage here in that it is the favored incorporation location for American businesses, resulting in the most well-developed corporate law jurisprudence in the country. Back in law school, my book on corporate law was mostly about Delaware decisions. Montana is a surprise. I'll have to look into them.
9.13.2008 11:56am
Soronel Haetir (mail):
I wonder if Montana's two level court system without an intermediary court of appeals helps explain that result. A court of last resort that must take nearly all cases is going to write opinions on cases that in other states would get resolved in a normal court of appeals.
9.13.2008 12:28pm
GV:
The Texas high courts, both of them, are farces. First, they take way too long (especially the civil high court) to issue an opinion. It's not unusual for a case to languish their for years. Second, they're elected, so they all have to be worried about pleasing their constituents as opposed to neutral and fair application of the law. Third, they've both been mired in scandal over the past several years. One of the justice's wife was indicted for insurance fraud. Another has been having several battles with various ethics committees over his actions. A third is under investigation for lying to a fellow justice and breaking from past practice in death penalty cases regarding when the courthouse doors close. Fourth, both courts are entirely republican. There's no ideological balance at all and no one really to call out the other justices when they're entirely bending the law. Fifth, most of the justices are simply not that bright. Nothing destroys your confidence in several of the justices ability to do their job more than having a simple conversation with them about any topic that requires them to think. Sixth, despite the fact that Texas is such a large state with lots of unique legal issues, when was the last time you heard a Texas high court opinion make legal waves for being an impressive piece of work?

Need I go on?
9.13.2008 1:05pm
Handsome Dan:
Actually, the Indiana Supreme Court has a reputation of having very few partisan differences between the justices.
9.13.2008 1:07pm
megafirm partner:
why should number of opinions be a metric? McDonald's sells a lot more food than Arzak, ...
9.13.2008 1:48pm
Independent and Adequate:
One metric I didn't see was a measure of how reliant a state is on its own constitution. Oregon, for example, rarely disposes of cases on federal constitutional grounds because it has a robust tradition (modernly at least) of independent interpretation of its state constitution. This could lead to Oregon opinions being cited less frequently than other states because Oregon's opinions are more narrowly specific to the state.

Also, the extent to which a state's law is primarily statutory (and based on legislatively drafted statutes rather than enacted model or uniform laws) there are fewer occasions for that court to cite law from other states, or for other states to cite opinions from that court.
9.13.2008 1:52pm
Fedya (www):
What about fewest decisions overturned by the federal courts as an indication of the "best" state supreme courts?

Granted, there probably aren't that many decisions appealed to the federal courts, so it may not be that good a measure....
9.13.2008 1:52pm
DG:
I've argued in front of several different state high courts, and have briefed cases in many others, but I don't know that I (or anyone else) has enough practice experience to answer your question.

I'm not surprised that Michigan ranks so low and that California ranks so high. In my experience, the Michigan Supreme Court and Texas Supreme Court deserve their low rankings--particularly in terms of extreme partisanship and lack of respect from outside courts--and the California Supreme Court well deserves its reputation for high-quality opinions, influence, and independence. It's also important to consider the specialized role that some courts play. For example, Delaware's influence has a lot to do with its focus on corporate law, which makes up a big part of its docket. Arkansas does dispose of cases quite quickly and does write opinions in most cases, but it also has a low workload for the number of justices.

I was surprised that New Jersey was not ranked higher. Same for Alaska.

I wonder if there's a way of studying the relative quality of the state and federal courts. Although the U.S. Supreme Court tells us repeatedly that we should expect "parity," I strongly suspect that isn't so. Federal judges produce much, much higher quality work across the board.
9.13.2008 1:56pm
DiverDan (mail):
I really can't speak to any other than the Texas courts. The Texas Supreme Court has been surprisingly good on civil matters (though plaintiffs' P.I. lawyers might disagree), even though its reputation suffers from the fact that Texas judges are elected in partisan elections, with all of the potential for corruption (i.e., the fact that judges have to solicit campaign contributions from lawyers, law firms, and businesses that regularly appear before them), and randomness (i.e., the fact that 99+% of the voters have no real clue how good or bad the candidates really are, and rely almost exclusively on party label to decide how to vote). The Texas Court of Criminal Appeals is a whole other matter - in order to obtain and keep a seat, you pretty much have to promise to be "tough on criminals", and if you make one decision which results in releasing a defendant or giving a new trial (even if controlling Constitutional precedent pretty much demands it), that decision WILL be held against you by the voters, even if you have twenty law professors swear on a stack of bibles that the decision was the right one; as a result, with very rare exceptions, it is almost impossible for criminal defendants to get a truly fair hearing in the Texas Court of Criminal Appeals. Unfortunately, as long as these judges are elected in partisan elections, that is unlikely to change. Any candidate who promises to be truly fair and follow the law is unlikely to be elected to that Court, and any who are lucky enough to be elected and do try their best to be impartial are doomed to constant reelection battles and almost certainly a short tenure on the Court.
9.13.2008 1:57pm
TerrencePhilip:
NaG wrote: Personally, I think the "best" court would naturally be the one that is cited by other courts most often, since that court's thoughts and decision-making process are strong enough that other judges, who are not bound by those decisions, still think the opinion presented is strong enough to allow it to persuade them.

Plessy has probably been cited more than the average SCt commerce-clause decision, but that is hardly evidence that Plessy was rightly decided. Approving citations to the decisions of a particular state court, over a long period of time, are one indication of quality. I would agree that is probably the best measure.

As for publishing the most opinions, I'm on the fence-- it's good to the extent it means the judges work hard. However, this metric may be misleading-- Mississippi ranks high on this list but I recall reading a few years back that Mississippi only recently installed an intermediate appellate court, and Mississippi law required its supreme court to produce opinions in cases within a specified time frame.
9.13.2008 2:36pm
Joe Blow (mail):
DiverDan -- I disagree about the Texas Supreme Court. It suffers from the same problems as the court of criminal appeals.

"The Texas Supreme Court of Criminal Appeals is a whole other matter exactly the same- in order to obtain and keep a seat, you pretty much have to promise to be "tough on criminals plaintiffs and to protect Texas business interests", and if you make one decision which results in releasing a defendant or giving a new trial a plaintiff's verdict against a large corporation(even if controlling statutory or Constitutional precedent pretty much demands it), that decision WILL be held against you by the voters, even if you have twenty law professors swear on a stack of bibles that the decision was the right one; as a result, with very rare exceptions, it is almost impossible for criminal defendants civil plaintiffs to get a truly fair hearing in the Texas Supreme Court of Criminal Appeals. Unfortunately, as long as these judges are elected in partisan elections, that is unlikely to change. Any candidate who promises to be truly fair and follow the law is unlikely to be elected to that Court, and any who are lucky enough to be elected and do try their best to be impartial are doomed to constant reelection battles and almost certainly a short tenure on the Court."
9.13.2008 2:36pm
DiverDan (mail):
As I said, Joe Blow, Plaintiffs' P.I. Lawyers might differ with my opinion - however, from MY perspective (and I am NOT a "Business Interest" or Insurance Company, or even a Personal Injury defense lawyer), the Texas Supreme Court has gotten it mostly right on the law these last several years. The biggest bitch most Plaintiffs' lawyers have had is the Texas Supreme Court's reluctance to through out statutory tort reform on questionable constitutional grounds. That having been said, you are certainly entitled to disagree with me.
9.13.2008 3:20pm
NaG (mail):
TerrencePhilip: Whether a given opinion is correct is a whole 'nother issue. Like I said to SpenceB, whether a decision is correct/just will depend on who you ask. We can't measure anything that way. But if a given state court issues a poorly reasoned opinion and courts in other states, not bound by that decision, adopt that reasoning out of respect for the perceived authoritativeness of the issuing court, then I would have to say that the issuing court, despite getting it wrong, is "better" than average, if we are to try to rank state high courts for the purpose of generating lively discussion.
9.13.2008 3:34pm
BRM:
Why is it surprising that southern states have strong high courts?
9.13.2008 3:41pm
GV:
I also have to disagree with DiverDan on the Texas Supreme Court. I assume we're not going to make a ton of headway on whether the court generally gets it right. But even if it does (something I disagree with), there's still lots of structural problems with the court. How many opinions (especially insurance opinions) takes years to decide? At some point, the litigants would rather have the quick, wrong answer than the right answer in three years. And is there any faith that the court gets it right, given that the justices are all elected using money from business groups? The same structural flaws that result in sloppy decision making in the Texas Court of Criminal Appeals exist in the Texas Supreme Court. The problem isn't just with the current set of 18 justices. It's endemic.

And to build on one of my earlier points regarding the lack of viewpoint diversity, there's very, very few dissenting opinions. Dissent often force the majority to sharpen its opinion. Even if it comes to the right conclusion, it can do so through sloppily or otherwise illogical means when there's no opposition.

The Texas court system really is an embarrassment -- from top to bottom. I currently practices in California, which has problems of its own, but the typical judge here is head and shoulders more qualified than the typical judge back in Texas.
9.13.2008 4:04pm
MS (mail):
Hey! Why is Arkansas any more suprising that North freaking Dakota? I'll take Richard and Morris Arnold over any North Dakota judge you come up with.
9.13.2008 4:13pm
Fat Man (mail) (www):
Here in Ohio, we are so proud of our Supreme Court Justices that we call them the "Seven Potted Geraniums".
9.13.2008 4:18pm
Joe Blow (mail):
DiverDan: I'm not a "Plaintiffs' P.I." lawyer.
9.13.2008 4:27pm
Mike& (mail):
The Michigan Supreme Court of the past few years is one of the worst. They have no respect for precedent. You can research a point of law, only to find out that a century's worth of cases was wiped away simply because the new majority of the court did not like those cases.
9.13.2008 4:32pm
Zed:
How about weighing the first two factors by per capita (either by population or per judge)? States with more people would have more cases.
9.13.2008 5:02pm
stanneus :
I've been working in New York's appellate courts for decades. The Court of Appeals (NY's highest court) is coasting , and is the beneficiary of an undeserved reputation, one that was earned years ago. I'm speaking of the quality of the opinions. If measured by depth of analysis and overall richness, opinions over the past 20 years or bear little resemblance to the opinions written in the 60's and 70's. In fact, the court's opinions are what one might expect from an intermediate appellate court rather than from a court of last resort. This is probably attributable to the Chief Judge's strong proclivity toward producing unanimous opinions. In any event, there's little excuse for the decline in quality and depth. It is not a very busy court: it grants permission to appeal in only about 1 of 45 appeals that seek to be heard, hearing less than half the number of appeals it heard just 20 years ago. And there is more in-chambers help than ever to boot. Pity. The glory that was . . .
9.13.2008 6:04pm
Brian G (mail) (www):
In New Mexico, we have five trial lawyers on the high court. A conservative judge is nowhere to be found.
9.13.2008 6:05pm
T. Gracchus (mail):
Interesting that West Virginia, is not on the worst list, despite being for sale and unable to identify a conflict of interest ever.
9.13.2008 8:47pm
BadgerMan:
The Connecticut Supreme Court is not nearly as partisan as it was during the Berdon years (90's). Yet, former public defender Joette Katz remains to skew decisions leftward, especially on criminal matters. Justice Norcott, who got re-appointed even though his law license was suspended for "improprities," likewise skews the decisions toward the left.
9.13.2008 11:26pm
DeezRightWingNutz:
Mike&, that's what I would argue makes it one of the best.
9.14.2008 12:22am
Michael J.Z. Mannheimer (mail):
stanneus,

Amen, brother. The New York Court of Appeals is no longer the court of Cardozo. Its opinions are typically pretty paltry and, even when it comes to the right result, the reasoning is paper thin. I practiced criminal appeals on the defense side but I am under no illusions — I know which cases I should win and which ones I should lose. The court's aversion to reversing criminal convictions, even at the risk of badly misapplying Supreme Court precedent or misreading state statutes, is simply galling.

The findings here, though, are at least accurate in this respect: partisan differences do matter little on the New York Court of Appeals. At least when I was practicing, and there have been some personnel changes since then, the court was about evenly split between Democrats and Republicans. But you could count on all the judges except one (since retired) to reflexively be on the prosecutor's side. Indeed, the one bright spot on the court is Bob Smith, a Republican appointed by Governor Pataki, who is incredibly smart and incredibly fair, and who has the guts to side with the defendant when that's the way the law points (disclaimer: Smith was a partner at the firm where I was an associate for two years, but I never worked with him and I barely knew him).
9.14.2008 12:44am
TerrencePhilip:
I'd like to see studies of how campaign contributions influence state supreme courts as a measure of quality.


Brian G wrote:In New Mexico, we have five trial lawyers on the high court. A conservative judge is nowhere to be found.

/researches admissions requirements in New Mexico
9.14.2008 1:28am
The General:
California Supreme Court is definitely high on something.
9.14.2008 2:36am
John Kindley (mail) (www):
My opinion of the North Dakota Supreme Court is based on the one case I briefed and argued before them, Kjolsrud v. MKB Management dba Red River Women's Clinic, and my opinion of them as judges couldn't be lower.
9.14.2008 7:42am
Cornellian (mail):
I'd like to see a study comparing elected state supreme courts with unelected state supreme courts, though dividing every state into one category or the other might not be easy, as I think a number of state supreme courts are semi-elected (e.g. appointment plus retention election or something like that).
9.14.2008 10:59am
Steve2:
John, what about your experience caused that low opinion?
9.14.2008 11:40am
John Kindley (mail) (www):
Steve2,

Their unanimous opinion against my client, where they ruled that the false advertising statute under which we had filed suit was unconstitutional as applied to my client. To do this, they tried (unconvincingly in terms of legal principles) to distinguish prior North Dakota precedent which appeared to hold just the opposite, as well as persuasive precedent from California interpreting a virtually identical statute. Moreover, they refused to at least reverse the $30k costs judgment against my client, who had brought the suit in good faith based on the clear language of the false advertising statute and the North Dakota statute interpreting the statute. That our suit was meritorious is shown by the circumstance that the defendant offered prior to trial to settle the suit by paying all of our costs up to that point and by agreeing to be enjoined from using both of the commercial brochures that were the subject of the lawsuit. We declined that offer because the defendant refused to further agree to give their customers a reasonable and objective disclosure of the scientific evidence (linking induced abortion with increased breast cancer risk) that was also the subject of the lawsuit. The North Dakota Supreme Court opinion did not address at all the underlying merits of the case, having based its decision solely on the unconstitutionality of the statute. Their issued opinion was a shock because during the oral argument the judges, at least some of them, seemed to recognize both the merits of the underlying cause and the legislative purpose / policy justifications behind the false advertising statute.

In short, I had the distinct impression, which remains to this day, that the North Dakota Supreme Court demonstrated in this opinion that it was in fact "conservative," but in the worst sense of the word. Basically, they were unwilling to stick their necks out and risk media criticism in order to do justice.
9.14.2008 2:26pm
Perry Dane:
Just a few thoughts here.

To begin with, it's worth asking, as you do in your article, why this "ranking" exercise is worthwhile. The main reason, it seems to me, is to try to extract some conclusions about the structural design of judicial systems, most importantly whether elected or appointed systems produce "better" courts. (In fact, it should also be possible to reach more nuanced conclusions, such as distinguishing between partisan and nonpartisan elections, or between gubernatorial-dominated or more collective forms of appointment). One caveat here, though: Supporters of electing judges (I'm not one) might argue that the "best" judges are not the ones who produce the most closely reasoned opinions, or whose opinions are influential in other states, but, to the contrary, the ones who exhibit the most "common sense" or "political accountability" or "sensitivity to local views and sensibilities" or something like that. In other words, states with different judicial selection processes might get the judges they "deserve" and even the judges they "want."

As to the substance of the rankings: (1) I agree that looking to "productivity" or the number of opinions produced is a little odd, not only because quantity is not the same as quality, but because quantity might be largely determined by the peculiarities of different states' appellate structures and procedures. (2) I also think that just counting out-of-state citations as a proxy for influence is far too simple. At the very least, you need to distinguish positive from negative citations. Even among positive citations, though, you need to look out for the sort of feedback loops that bedevil other ranking efforts (such as US News &World Report). Say, for example, that California has a pre-existing high reputation, partly based on past glories and partly based, frankly, on sheer size and visibility. If I'm a judge in some other state looking to put together a string cite to support a proposition I'm defending, I'm very likely to put a California case in that string-cite, even if it is no better reasoned or actually influential to my own thinking than any one of 10 similar opinions from other states. So the California court can coast along for a very long time being cited to a degree well in excess of its actual "influence." Influence should really be measured, not by the number of citations, but by the production of pivotal cases -- cases that actually move the law in a way that other courts accept, or that reformulate existing doctrine in a way that other courts adopt. Measuring influence would require reading cases, and not only counting citations. That is not to say that the production of "pivotal cases" couldn't be roughly quantified. I can imagine, for example, giving a corps of research assistants a slew of randomly selected opinions to read, and asking them to code the opinions with respect to the influence of out-of-state decisions on reasoning and outcomes. (It would even help to "blind" the coding exercise by replacing actual citations with dummy state names, so as to reduce the effect of the research assistants' own pre-existing biases.) Of course, even this measure of "pivotal cases" would not eliminate the effect of "coasting on past reputation." But it might reduce it.
9.14.2008 10:37pm
Jay Myers:
Mike&:

The Michigan Supreme Court of the past few years is one of the worst. They have no respect for precedent. You can research a point of law, only to find out that a century's worth of cases was wiped away simply because the new majority of the court did not like those cases.

So were judges smarter or better educated back then that current judges should subordinate their own wisdom to that of past courts? If not, then each case should be decided upon its own merits, reinventing the wheel so to speak.

If the precedent was rightly decided according to the current court's interpretation of the law then it will be upheld just as if the court was adhering to stare decisis. If the precedent was wrongly decided then it would be unjust for the current court to compound that error. Or would you prefer that today's courts still be holding Taney's opinion in Dred Scott to be valid?
9.15.2008 3:01am
Michael J.Z. Mannheimer (mail):
Jan Myers,

Stare decisis does not mean adhering to "precedent [that] was rightly decided." It means adhering to precedent, period, except when there is a compelling reason not to. Mere disagreement is not compelling.

"[W]ere judges smarter or better educated back then . . . ?" I think the better question is whether judges today should be so filled with hubris that the considered decisions of their forebears are essentially worthless.

And Dred Scott is a red herring. Dred Scott -- or at least the aspect to which you likely refer -- was overruled by the Fourteenth Amendment.
9.16.2008 10:40pm

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