Information now available for the Court’s 2013-14 term has invited the question of whether the Court’s performance in 2013-14 represented a departure from the recent past. Responses to this question often serve as the means by which commentators proceed to conclude that the Court is, or is not, more “polarized.” Not surprisingly, opinions on this score depend in part on the category of data chosen for examination and the significance attributed to it as a key to understanding the Court’s behavior. Thus a recent post from Foley and Lardner posed the question in its headline—“A Divided Court?”—and answered “no,” while a Wisconsin Law Journal article appeared under the following headline: “Supreme splits deepen: Analysis of latest term reveals new lows for concurrence.”[1]
Differing views on this question depend not just on the pieces of data selected for emphasis but also on the period of time chosen as a standard of comparison. For instance, 5-2 votes accounted for 20% of all decisions in 2012-13 and then soared to 36% of all decisions in 2013-14. This is a large increase by any reckoning, but it seems less dramatic when one discovers that 5-2 votes accounted for 32% of all decisions in 2011-12 and 40% in 2010-11. It may be worthwhile then to offer a broader historical perspective and some additional information for those engaged in analyzing the Court’s recent activity.
The Court’s votes during the 2013-14 term were distributed as follows.[2]
7-0 decisions—30%
6-1 decisions—8%
5-2 decisions—36%
4-3 decisions—26%
If we include the 2013-14 term with the preceding 15 (that is, 1998-99 through 2013-14), we find the following averages for the 16 terms, along with the standard deviations.[3]
7-0 decisions—51%, standard deviation: 10.5%
6-1 decisions—10%, standard deviation: 4.2%
5-2 decisions—23%, standard deviation: 8.0%
4-3 decisions—17%, standard deviation: 5.5%
A number of things catch the eye. The 2013-14 term’s figure for 6-1 decisions (8%) is very close to the average for the 16 terms (10%). But such is far from the case for the other three vote categories, most notably for unanimous decisions, where the 2013-14 figure of 30% was two full standard deviations below the 16-term average of 51%. For 5-2 decisions, the 2013-14 figure (36%) was well above the 16-term average of 23%—1.6 standard deviations above—which was also the margin by which the percentage of 4-3 decisions in 2013-14 exceeded the 16-term average.
It may also be instructive to compare the figures for 2013-14 with averages for the six terms during which the Court’s current members have occupied the bench (2008-09 through 2013-14). The six-term averages are as follows (to aid comparison, figures for just the 2013-14 term are included in parentheses).
7-0 decisions—43%; standard deviation—8.4%. (for 2013-14 alone, 30% of the term’s decisions were 7-0)
6-1 decisions—12%; standard deviation—4.0%. (for 2013-14 alone, 8% of the term’s decisions were 6-1)
5-2 decisions—30%; standard deviation—7.5%. (for 2013-14 alone, 36% of the term’s decisions were 5-2)
4-3 decisions—16%; standard deviation—6.2%. (for 2013-14 alone, 26% of the term’s decisions were 4-3)
These figures encourage the question of how broadly 2013-14 marked a departure for the Court, even when the comparison is restricted to only the period of its current membership. Certainly the change is evident with regard to the category of data under consideration here—most vividly for 7-0 and 4-3 decisions, where the figures for 2013-14 were much lower than the 6-term average for 7-0 decisions and much higher for 4-3 decisions (a gap of slightly more than one and a half standard deviations in each instance).
Conclusion
No doubt opinions will vary as to whether this information is germane to the question of a “polarized” Court, in large part because the term “polarized” can be defined in diverse ways—as can the term “contentious.” Suppose, for purposes of discussion, that “contentious” cases are understood to mean cases with either two or three dissents (in a court with seven justices). The 16 terms under consideration here averaged 40% “contentious” and 60% “uncontentious” cases per term, slightly more than two full standard deviations removed from the figures for 2013-14: 62% “contentious” and 38% “uncontentious.” If some other definition of “contentious” cases seems more compelling, perhaps the complete set of data in the accompanying table will assist in determining whether this understanding of the term aptly characterizes recent practice in the Wisconsin Supreme Court.
In any event, the Court’s 2013-14 term witnessed some notable changes, even when the comparison is restricted to the last six terms, to say nothing of the lengthier period also considered here. Thus, a year from now, it will be interesting see if corresponding data for the 2014-15 term will join that of 2013-14 in a journey away from the longer-term average, or whether the 2014-15 term will amount to a zig countering the zag in 2013-14.
[1] http://www.wiappellatelaw.com/2014/09/18/wisconsin-supreme-court-2013-2014-term-summary-part-2-a-bitterly-divided-court/ (accessed October 5, 2014)
http://wislawjournal.com/2014/09/08/supreme-splits%e2%80%85deepen-analysis-of-latest-term-reveals-new-lows-for-concurrence/ (accessed October 5, 2014)
[2] Here, and elsewhere in this post, the term “7-0 decisions” includes a small number of unanimous decisions with different vote counts (generally 6-0). In similar fashion, “6-1 decisions” include a handful of 5-1 votes; “5-2 decisions” a few 4-2 votes; and “4-3 decisions” a very small number of 3-2 votes.
[3] The term “standard deviation” indicates that approximately 68% of the data are included within one standard deviation on either side of the average, and roughly 95% of all data are included within two standard deviations on either side of the average. Taking 7-0 decisions as an example, consider the information supplied above—an average of 51% of all decisions per term were 7-0 decisions, with a standard deviation of 10.5%. Possessing this information, we know that in roughly 68% of the Court’s sixteen terms, 7-0 decisions represented between 40.5% (51% minus 10.5%) and 61.5% (51% plus 10.5%) of all decisions. And in roughly 95% of the sixteen terms, 7-0 decisions ranged between 30% (51% minus 21%—that is, minus two standard deviations) and 72% (51% plus 21%—that is, plus two standard deviations) of all decisions. A glance at the accompanying table indicates that these approximations are reasonable. The 1998-99 term registered the highest percentage of 7-0 decisions at 71%, while the 2013-14 term produced the lowest percentage of such decisions at 30%.
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