Concurrences, Dissents, and Efficiency

Perhaps the most notable feature of the Wisconsin Supreme Court’s recent decision in State v. Ramon G. Gonzalez (2012AP1818-CR, filed on December 3, 2014) was the separate opinion authored by Chief Justice Abrahamson.  Although labeled a concurrence, it resembled a dissent—not with regard to the decision in Gonzalez, which did not figure in her discussion, but with regard to the Court’s new procedure for opinion preparation and mandate.  Adopted in the fall of 2014 by a deeply divided court, the new rules are designed to accelerate the release of decisions.  To this end, the four justices (Crooks, Roggensack, Ziegler, and Gableman) who voted to adopt the rules over the objections of their three colleagues placed specific limits on the number of days for writing, circulating, and revising opinions.  Chief Justice Abrahamson’s concurrence served as a public opportunity to express misgivings over the new rules.  While acknowledging that “timely release of our opinions after oral argument is important for the litigants, for the bench and bar, for the public, and for this court,” she cautioned that “we should not, however, sacrifice thoughtful discussion and careful collegial review of draft opinions just for the sake of speed.”  She seemed especially troubled that the new time restrictions “are unwelcoming to concurrences and dissents.”

This post presents information on the relationship between the time taken to file decisions and the number of concurring and dissenting opinions included in these decisions.  As noted in previous posts, the number of days between oral argument and decision filing has increased over the past 17 years (the period currently covered by SCOWstats data), while the number of decisions filed has diminished considerably over the same interval.  (See Graphs 1 and 2.)  Clearly, more time is being taken to file fewer decisions, and it seems plausible to hypothesize that a principal reason is the larger share of contentious decisions in recent years (see “2013-14 in Perspective: Part 1”).  Pursuing this line of conjecture, one may speculate reasonably that a larger proportion of contentious decisions corresponds with a larger number of concurring and dissenting opinions—and that the number of concurring and dissenting opinions correlates with the increasing amount of time taken to file decisions.

Before presenting statistics, it may be helpful to explain that the figure of interest here is the average number of concurring and dissenting opinions per decision.  A simple calculation of the number of concurring and dissenting opinions each term would be less revealing, because some years yielded a large number of concurring and dissenting opinions mainly because a large number of cases were decided.  In such instances, the average number of concurring and dissenting opinions per decision could well be low, as evident in Table 1.

Proceeding, then, with the average number of concurring and dissenting opinions per decision, the correlation with the number of days taken to filing decisions is quite strong, as demonstrated in Graph 3—which encourages the plausible surmise that a larger number of concurring/dissenting opinions per decision contributes to a larger number of days required to file a decision.

At any rate, the four conservative justices who adopted the Court’s new procedures appear to have reached this conclusion, for their rules address concurring and dissenting opinions at length and direct at these opinions an explicit statement of blame for delays in filing decisions.  With this in mind, it should occasion no surprise to learn that the Court’s two liberal members (Justices Abrahamson and Bradley) have written the largest number of concurrences and dissents.  In fact, as shown in Table 2, Justices Abrahamson and Bradley authored more concurrences and dissents—both in 2013-14 and over the entire six terms in which the seven current justices have served together—than did the other five justices collectively.  Justice Abrahamson contributed far more of these opinions than any of her colleagues, including an output in 2013-14 that was 50 percent higher than the total written by all four of the justices who approved the new rules on concurrences/dissents.  Thus there can be little doubt regarding the primary target of these rules—nor any surprise over Justice Abrahamson’s disquiet.

Views will differ regarding the new limits adopted by the conservative justices.  Should the procedures be interpreted as a laudable effort to increase the Court’s efficiency or as an attempt by those in the majority to minimize opinions at variance with their own?  It may even be possible for some observers to embrace both interpretations.  In any case, if the new rules are enforced in their current form, they will indeed reduce the number of days between oral argument and opinion filing.  And if a correlation persists between this reduction and a smaller number of concurrences and dissents per decision, it can be illustrated beyond a doubt by the end of the term.  Less agreement will be likely as to whether such an impact on concurrences and dissents should be applauded.

About Alan Ball

Alan Ball is a Professor of History at Marquette University in Milwaukee, WI.

SCOWstats offers numerical analysis of the voting by Wisconsin Supreme Court justices on diverse issues over the past 91 years.

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