Now that the Supreme Court has issued its last substantive decision for the 2014-15 term, researchers who examine the court’s work may encounter some findings that they had not anticipated.
Most surprising, given the frequent reports of turmoil that beset the court in 2014-15, is the near elimination of 4-3 decisions and a correspondingly large increase in unanimous decisions. Never before, over the previous 20 years, has there been only one 4-3 decision in a term—even in 1995-96, when 87% of the decisions were unanimous.[1] Over the last six terms before 2014-15 (during which the current justices have served together), 4-3 decisions averaged nine (and never fewer than four) per term.
Had one been told in advance that the 2014-15 term would yield only a single 4-3 decision, it would not have been farfetched, given the tension evident among the justices, to predict a large increase in 5-2 and/or 6-1 decisions, heralding the isolation of Justices Abrahamson and Bradley. This makes the dramatic increase in unanimous decisions—up from 30% of all decisions in 2013-14 to 55% in 2014-15—so remarkable. (See Table 1) To be sure, the percentage of unanimous decisions was considerably higher in the mid-1990s, and the figure of 30% in 2013-14 is low even for the period in which the court has maintained its current composition. But it is striking that relations between the justices could grow more openly acrimonious in 2014-15—worse than ever, it appeared—at the same time that the percentage of unanimous decisions soared.
This arresting development recalls an article by Adam Liptak last summer in which he speculated on possible reasons for the marked increase in unanimous decisions issued by the US Supreme Court during its 2013-14 term. More specifically, Liptak wondered how a court “firmly divided along partisan lines” could vote unanimously in 65% of its orally argued cases, the highest share “since at least 1953.” Part of the reason might have been a smaller number of ideologically-infused cases, he guessed, and perhaps additional study will find that something of the sort played a part in Wisconsin in 2014-15.
Be that as it may, Liptak also observed that the nine justices “are sensitive to the accusation that they are motivated by politics,” and “their efforts to find common ground may have been partly an attempt to counter the charge that they are, in Justice Stephen G. Breyer’s words, ‘nine junior varsity politicians’ motivated by partisan agendas better left to elected officials.” Perhaps the justices in Madison were responding, if only subconsciously, to frequent charges last year that the court was bitterly polarized. I would be grateful to learn of other theories that might help account for the substantial increase in unanimous decisions issued during this turbulent period at the summit of Wisconsin’s judiciary.
Liptak added, by the way, that the US Supreme Court’s apparently routine unanimity was a testament to the savvy, consensus-building leadership of Chief Justice John Roberts. If any of the justices on the Wisconsin Supreme Court are playing such a role, it has yet to become evident.
One of the indications of disquiet among Wisconsin’s justices this term involved the new rules adopted to reduce the time taken to issue decisions following oral argument (and, complained Justice Abrahamson, to reduce discussion of these decisions among the justices).[2] There seems good reason to conclude that these new rules have had a significant impact, as the average period from oral argument to the filing of a decision in 2014-15—112 days—represents a 31% decrease in the average for 2013-14—162 days. It bears noting that the average was a good deal lower in the mid-1990s (86 days in 1995-96 and 90 days in 1996-97, for example), but the fact remains that the average for 2014-15 chopped slightly more than a month off the average (148 days) for the preceding six terms.
As one would expect, sizeable differences remained among individual justices in 2014-15, with Justice Prosser’s average (173 days between argument and filing) roughly double the averages for Justices Crooks, Ziegler and Gableman. Still, six of the seven justices, including Justice Prosser, reduced the average number of days taken to release their majority opinions compared to their averages for 2013-14, as detailed in Table 2. Only Justice Bradley saw her average increase, perhaps because of the time absorbed by her reelection campaign.
While the court’s average of 113 days between oral argument and decision filing in 2014-15 amounts to a considerable reduction in the average number of days that had been required during the previous term, there is still some way to go to reach the goal sought by the authors of the new rules, who envisioned a maximum of 107 days “from first circulation of a majority opinion to mandate.” It will be interesting to see if the number of days to filing continues to decrease in 2015-16.
[1] In 1995-96 there were two 4-3 decisions.
[2] The new rules may be found in Justice Abrahamson’s separate opinion in State v. Gonzalez. In her commentary on the rules, Justice Abrahamson also expressed concern that “these provisions, as well as the short time periods allowed for separate writings, are unwelcoming to concurrences and dissents.” Whether by coincidence or not, the number of separate opinions did indeed drop in 2014-15 compared to the previous term—by 27%, from 82 to 60. For more detailed information, including figures for individual justices, see the data in the SCOWstats posts for 2013-14 and 2014-15.
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