Dysfunctional and Divided Court? The Numbers Tell Another Story.

 In In the News

The tale of the Wisconsin Supreme Court as sharply divided and contentious is well known. There is certainly some truth to the story, but the cause of – or, if you prefer, “blame” for – the conflicts on the Court, as well as their impact on its work, is a more complex and nuanced subject.

The Court Is Becoming More, Not Less, Efficient

Critics of the Court sometimes charge that the Court is so filled with rancor and personal animus that the court can’t get its work done, highlighting high profile incidents like the physical altercation between Justices Bradley and Prosser.  They claim that the court is deciding fewer cases in recent years than it has in the past.  Although it is true that the Court is deciding fewer cases now than previously, that decline is a trend that long predates most of the current members of the Court.  The Court hasn’t heard a hundred cases in a term in more than 20 years.

More importantly, any long-term decline in the number of cases decided is irrelevant to whether the court is “getting its job done.”  The Wisconsin Supreme Court is a law-developing court that exercises discretionary jurisdiction.  Its job is not to correct all of the errors that might have occurred in the lower courts or to decide as many cases as possible.  Rather, it takes only those cases which present exceptionally important issues or in which development or clarification of the law is required.  Because we want the Court to address these uniquely complex and demanding cases in a thoughtful way, taking fewer cases may be better than taking more.

With this mind, there may be many reasons for the Court to take fewer cases that have nothing to do with its work ethic or level of “dysfunction.”   Fewer petitions for review (people asking the high Court to take their case) have been filed in recent years.  Fewer of those petitions may be meeting the exacting criteria the Court relies on when deciding whether to take cases.  The current majority, dedicated to a philosophy of judicial restraint, may simply be more accepting of the legal status quo than the previous majority that claimed a more active role in shaping public policy. Given its role as a law developing – and not error correcting – court, more of the justices may have decided to emphasize quality over quantity.

A better measure of the Court’s productivity is how long it takes the justices to get their opinions released after oral argument.  As the old saying goes, “justice delayed is justice denied” – litigants and the public in general deserve prompt decisions from the courts.  The finalization and release of a large number of opinions at the last minute also creates a greater risk of hurried and less than optimal work.

Analysis of those numbers shows that the Court has become more efficient, not less, over the past 10 years.  Table 1 shows the number of cases released in the last two months of the Court’s term – June and July (the Court typically hears its last oral arguments in May).  Prior to the 1996-97 term, the Court finished its work by the end of June.  Thereafter, opinions began to lapse into July.  The number of such “late” opinions skyrocketed (despite a decline in number of cases heard), peaking in 2002-03 with 52 total opinions coming late – 37 of those in July.  That trend reversed the next term, and the two most recent terms had fewer late releases than in any other term during Shirley Abrahamson’s tenure as Chief Justice.

Table 1

Table 1

Table 2 shows the median release date of opinions – the point by which half of a term’s opinions have been released – over the same time span.  Again we see a sharp incline in the mid-nineties, followed by a rough ten-year plateau, and a sharp drop to the earliest point in 15 years in the most recent term.

Table 2

Table 2

While it is clear that the Court has become more efficient recently, it is unclear why this is so or who deserves the credit.  Assigning blame or credit to individual justices is too facile.  But the most recent improvement in efficiency may be attributable to a change in internal procedures rather than membership – albeit a change that was supported by the conservative majority.

Once a case is decided, one of the justices in the majority is assigned to write an opinion. Other justices may decide to write concurring or dissenting opinions. Once the writing process has begun, they circulate draft opinions, and all seven justices meet periodically to discuss all of the pending drafts in conference.  The Court had previously discussed opinions in order of seniority, meaning the Chief Justice’s opinions were discussed first and the most junior members’ opinions last – if there was time.  A majority of the Court two terms ago changed the internal operating procedures to discuss opinions in the order they were circulated – incentivizing the justices to circulate drafts more rapidly.  Changes were also made to the rules concerning circulating concurrences and dissents.  These changes may be directly responsible for the significantly more efficient decisionmaking these past two terms.

As well as reducing the number of “late” opinions as shown in Tables 1 and 2, these procedural changes coincided with an increase in the number of “early” opinions – those released in October, November, and December, as shown in Table 3.  Prior to the rule change, no case had been released earlier than December in four years.

Table 3

Table 3

Obviously, there is a significant and visible amount of animosity on the Court.  While we find that disappointing, it is not particularly surprising, given that the seven justices are tasked with deciding the fate of highly controversial policy decisions.  But those conflicts are not affecting the justices’ ability to get their job – deciding cases – done.

Judicial Divides Are Not Political Divides

Critics of the Court also claim that it has some stark 4-3 division of conservatives and liberals, and never the twain shall meet.  This narrative spins a tale of “Republican” justices at loggerheads with “Democratic” justices, warring camps that can’t agree on anything.

But the justices actually agree quite frequently.  As Table 4 shows, a significant number of cases every term have a unanimous result.  As Table 5 shows, in the most recent term all of the justices agreed with each other and were in the majority most of the time.  Five of the justices agreed with each other 90% or more of the time.

Table 4

Table 4

Table 5

Table 5

Close cases – those decided by a one vote margin, typically 4-3 but sometimes 3-2 – are not common.  Over the past 10 years, there have consistently (with one notable outlier) been right around 10 close cases each term: about 16% of the total.  Last term there were only four.

Furthermore, the breakdown of votes in these close cases often varies significantly from the clichéd liberal/conservative lineup.  Take the three 4-3 cases released so far this term.  One, a criminal case, saw Justice Prosser joining Justice Bradley and Chief Justice Abrahamson in dissent.  Another, an open records case, had a dissenting lineup of Prosser, Ziegler, and Gableman.  The third, an insurance case, featured a dissent written by Chief Justice Abrahamson and joined by Justices Crooks and Gableman.

The only divide that comes up frequently enough to be remarkable is in criminal cases, where Chief Justice Abrahamson and Justice Bradley have sided with the criminal defendant far more frequently than the other five justices, resulting in 5-2 splits in many criminal cases.

There are real differences in judicial ideology between the seven sitting justices.  People should educate themselves about the various approaches judges take to deciding cases, because philosophical differences matter, and some people may prefer a more liberal, activist philosophy to a more conservative, restrained one.

But it’s a mistake to treat the Court as a partisan body that votes predictably and constantly in blocs, just as it is a mistake to assume that the personality conflicts on the Court render it incapable of getting its job done.


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