Last month’s post on the number of opinions written by Justice Shirley Abrahamson during her record-breaking tenure on the bench prompted a generous reader to suggest that I look over Richard Posner’s Cardozo: A Study in Reputation to see if some of the techniques employed by Posner to gauge a justice’s judicial influence could also be applied in an assessment of Justice Abrahamson’s career.[1] The reader, Bill Tyroler, directed my attention to chapter five—“Cardozo’s Reputation: Measures of Magnitude”—which presents data on the number of times that other courts cited Cardozo’s majority opinions. What follows here are the findings of an investigation derived from this segment of Posner’s analysis.
We’ll begin by constructing a table that displays the average number of Wisconsin appellate court decisions (supreme court and court of appeals) that cite each majority (or lead) opinion written by Justice Abrahamson in a given term.[2] To keep the project manageable, the table includes all of Justice Abrahamson’s majority opinions every third term, beginning in 1976-77 (her first term as a justice), thereby providing us a set of 14 terms, ending in 2015-16. Taking the 1991-92 term as an example, Table 1 indicates that each of Justice Abrahamson’s majority opinions that term was cited by an average of 55.9 other Wisconsin appellate court decisions in the years thereafter.
(click on tables to enlarge them)
Now let’s compare these averages with those for an equal number of majority opinions written by Justice Abrahamson’s colleagues—our “non-Abrahamson” category. In other words, as Justice Abrahamson authored nine majority opinions in 1991-92, we need a random set of nine majority opinions from that term for the non-Abrahamson group. Adopting Posner’s method for generating a sufficiently random sample, we’ll arrange by filing date the court’s 70 decisions in 1991-92 and select each case that follows immediately after a case decided by one of Justice Abrahamson’s majority opinions.[3] Table 2 matches the Abrahamson and non-Abrahamson averages for all fourteen terms (showing, for instance, that each of the nine non-Abrahamson opinions from 1991-92 was cited by an average of 22.8 other decisions, compared to the average of 55.9 for the nine Abrahamson opinions).[4]
Using the same techniques, we can also compare the average number of citations of Abrahamson and non-Abrahamson majority opinions by appellate courts in the 49 other states and District of Columbia (Table 3) and by federal appellate courts (Table 4).[5]
Combining these results—and highlighting in red each of the Abrahamson averages that is smaller than the corresponding non-Abrahamson average—we get Table 5.
As Posner explains, citation analysis has its limitations when assessing judicial reputation or influence, and the relatively small number of decisions in a single term requires that conclusions be offered with additional caution. However, it is certainly not reckless to point out a difference between the first seven terms (when Justice Abrahamson’s averages generally exceeded those of the non-Abrahamson cohorts) and the second seven terms (when they did not). More specifically, in the “Wisconsin appellate courts” category, Justice Abrahamson’s average topped that of the non-Abrahamson sample in six of the first seven terms, but in only two of the next seven. The same pattern held for the appellate courts of other states (five of the first seven terms favoring Justice Abrahamson, but only two of the next seven) and for federal appellate courts (five of the first seven, and only one of the next seven).
This outcome may be associated with the fact that Justice Abrahamson voted much more often with the majority during the first seven terms (87% of the time) than she did during the last seven (67% of the time).[6] One might surmise that decisions mandating significant changes in existing procedures are among those most frequently cited by other courts, and Justice Abrahamson’s increasing rate of dissent suggests that she was less likely in later years to be writing the majority opinions in such cases.[7] In any event, there is no denying her dramatically reduced presence in the majority during the second seven terms (Table 6), and I’m wondering if this correlation with the clusters of red numbers in Table 5 is more than a coincidence. No doubt other considerations could aid in interpreting the results in Table 5, and, as always, I would be grateful for theories from readers.
It bears emphasizing that a justice’s influence may be extensive in forums well beyond the bounds of a courtroom and the opinions that issue from it. Even if we are confined to statistical measures, citation analysis is not the only device for estimating influence, as Posner observes, and I hope to return to this topic before long.
[1] Richard A. Posner, Cardozo: A Study in Reputation (Chicago: University of Chicago Press, 1990).
[2] Following Posner’s lead, this investigation does not include Justice Abrahamson’s concurrences and dissents.
[3] If two (or more) of Justice Abrahamson’s majority opinions occurred in a row in these chronological listings, I selected the next two (or more) non-Abrahamson decisions.
[4] The unusually large non-Abrahamson average (116.3) for 2003-04 is due to State ex rel. Kalal v. Circuit Court for Dane County, which yielded a majority opinion (by Justice Diane Sykes) that was cited by nearly a thousand subsequent decisions. However, even when Kalal is removed from the calculation, the non-Abrahamson average for 2003-04 (38.4) remains well above the Abrahamson average (28.6).
[5] For federal court citations of Wisconsin decisions, I selected the “All Federal Courts” checkbox in Lexis. This includes the Supreme Court, the Courts of Appeal, District Courts, Bankruptcy Courts, as well as various “specialty courts.” Very occasionally, the “hits” were simply refusals by the US Supreme Court to accept the case for review. I did not try to weed out these “hits,” as they were so few in number.
[6] These percentages are simply averages of the first seven and the second seven entries in Table 6.
[7] Posner advances a similar interpretation when he writes that “Cardozo, Brandeis, and Stone were out of step with the majority of the Court, and as a result were not assigned a proportionate number of important majority opinions.” Posner, Cardozo, 89.
About Alan Ball
Speak Your Mind