Wisconsin Supreme Court 2013-2014 Term Summary Part 2: A Divided Court?

18 September 2014 Wisconsin Appellate Law Blog

This post is the second in a series of posts analyzing the 2013-14 term of the Wisconsin Supreme Court. For our previous post click here.

In our last post, we observed that the Wisconsin Supreme Court released unanimous opinions more quickly than non-unanimous opinions and that the court had released opinions very slowly this year. These two observations raise an important question: Is the Wisconsin Supreme Court an ideologically divided court? The answer to this question, based on the voting patterns of the seven justices in the court’s issued opinions, is no.

Only about 26% of the court’s opinions this term were 4-3 decisions (16/61). This number is up markedly from 2011-2012 (4) and from 2012-2013 (9). Yet, while three of four 4-3 decisions in 2011-12 had the same composition of those in the majority and those in dissent, 2012-13 had five different combinations, and 2013-14 had six:

  • Eight of these opinions had Justices Crooks, Roggensack, Ziegler, and Gableman in the majority and the Chief Justice, and Justices Bradley and Prosser in dissent.
  • Three of these opinions had Justices Prosser, Roggensack, Ziegler, and Gableman in the majority and the Chief Justice, and Justices Bradley and Crooks in dissent.
  • Two of the opinions saw the four most senior justices in the majority and the three most junior in dissent.
  • And there was one opinion each where the majority was (1) the Chief Justice, Justices Bradley, Prosser, and Roggensack; (2) the Chief Justice, Justices Bradley, Crooks, and Gableman; and (3) the Chief Justice, Justice Crooks, Prosser, and Gableman.

These vote breakdowns make it hard to say that the court has a consistent ideological split. In fact, all seven justices voted either for affirmance or for reversal in 28% of the total opinions (17/61)—that is, more often than those in which the court was divided 4-3. The 4-3 decisions cover both civil and criminal cases. Even some of the more politically sensitive cases included two cases with 5-2 votes, one unanimous decision, and only one 4-3 split.

There’s an important caveat to all this, however: the remarkable frequency of separate writings by the justices. Over 61 opinions, the seven justices wrote 52 dissents, 27 concurrences, and 3 other separate writings. That’s a considerable amount, and the justices write these separate opinions, despite the court’s practice of discussing each opinion in a conference where it “considers each draft opinion carefully as to language and substance” until it is approved for release (see SCOWIS IOP II.G), which, one might reasonably think, would be an incentive to write less, not more.

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