A recent post (inspired by Richard Posner’s Cardozo: A Study in Reputation) offered a means of assessing the influence of Justice Shirley Abrahamson during her unprecedented tenure on the bench. This technique compared the number of times that appellate courts cited her opinions with the number of times that they cited opinions written by her colleagues in Madison.[1] However, Posner did not confine himself to inspecting courts’ decisions, and neither will we, as there are other ways of gauging judicial stature. One of these—the frequency with which a justice’s opinions and other endeavors are cited by law-review articles—is today’s topic.
Consider the contents of Table 1, showing the number of law-review citations of Justice Abrahamson’s activities and those of the 24 other justices who have served on the court during her 43 terms.[2] Most striking here is the enormous number of articles mentioning Justice Abrahamson compared to the sums for the other justices. In fact, Justice Abrahamson’s total of 993 is roughly six times the quantity for any of the next three justices: A.W. Bradley (175), Bablitch (173), and Coffey (161). Although the numbers are estimates—different random samples and different means for handling gray areas would yield slightly different figures (see the following footnote)—no defensible method would eliminate Justice Abrahamson’s overwhelming dominance.[3]
All justices write majority opinions, concurrences, and dissents, thereby guaranteeing them appearances in the text or at least the footnotes of law review articles (unless a justice is very new to the bench). As a result, many (often most) of the law-review references in Table 1 are to judicial opinions authored or joined by the justices—akin to the citations of their opinions in other appellate decisions covered by the previous post.[4] This is a meaningful measure of judicial influence, but another way to gain a sense of a justice’s standing is to focus on a subset of Table 1—namely, the number of law-review articles that mention (1) addresses delivered by a justice in public or professional settings and (2) articles (not judicial opinions) written by a justice.
These two activities take us into the realm of voluntary accomplishments that enhance a justice’s eminence—and differentiate Justice Abrahamson even more sharply from the other justices than was the case in Table 1. As Table 2 reveals, the number of articles that cite Justice Abrahamson’s publications and speeches towers above the amounts for her colleagues—nearly seven times as many as the next highest total (that for Justice/Judge Sykes).[5] Indeed, Justice Abrahamson’s figure of 465 is three times as large as the sum of the articles that cite the publications and speeches of all of the 24 other justices combined.[6] Clearly, by this accounting, no other justice has been as prominent as Shirley Abrahamson—not even Justice Sykes, whose elevation to a federal judgeship greatly increased her number of hits.
The techniques developed from Posner’s book are doubtless not the only ways of estimating a justice’s stature (and I’m always grateful to benefit from advice). But the tables in this post do suggest that most appraisals of the renown of Wisconsin Supreme Court justices will find Justice Abrahamson at the top of the rankings.
[1] Thanks again to Bill Tyroler for bringing Posner’s book to my attention.
[2] The coverage of law-review articles in Lexis does not extend back past 1982. This, of course, reduces the number of hits for justices on the court at the beginning of our period—the late 1970s—which includes Justice Abrahamson.
[3] Let’s say that a search for law-review articles mentioning Justice X delivers hits in 600 articles. Many of these hits will likely be “false positives”—other people with the same surname, for instance, or perfunctory references to Justice X, as in a list of the seven justices on the court in a given year. If these can be filtered out, we will be left primarily with hits of the sort that we desire: (1) references to a judicial opinion by (or joined by) Justice X; (2) references to an article or book authored by Justice X; (3) references to an address given by Justice X; (4) a tribute to Justice X; (5) a quoted comment by Justice X on matters regarding the court; and (6) other actions by Justice X pertaining to the legal system (such as forming a committee to draft a recommendation on some matter).
To cope with the volume of hits, I adopted a sampling procedure resembling that employed by Posner. For justices with only a few hits—30 or 40 law-review articles—I examined every article individually. But for larger numbers of hits (over a thousand in some cases), I took a random sample of articles and determined the percentage of articles in this sample that had references of the sort that we are including. The percentage could then be used to approximate a justice’s total number of significant hits. For example, if Justice X had a raw total of 600 hits, and scrutiny of a random sample of 30 of these articles found that 75% of the sample contained references that we are counting, I would arrive at an estimate of 450 significant articles for Justice X (75% of 600). Sample sizes varied from justice to justice, but they always represented a much larger percentage of a justice’s total number of hits than was the case in the example furnished in Posner’s study.
As with any selection criteria, there are some gray areas—notably, articles that refer to a justice’s election campaign. Generally, I have counted articles with references to a justice’s campaign if these include substantive quotations from the justice or commentary on controversies associated with the campaign, but I have excluded minor references (such as a note that a justice won reelection in a particular year).
I have also excluded minor references of other sorts, such as those encountered occasionally in biographical sketches of other people (“so and so clerked for Justice X before moving on to various positions of increasing prominence”), unless a reference discusses Justice X’s influence on a person’s career (very rare). Excluded, too, are notes that a justice did not participate in a particular decision. However, I have counted articles that cite other articles said to quote a justice on a matter under discussion in the first article. None of these exclusions or inclusions occur frequently, and while disagreement might arise over the proper classification of one example or another, no rational approach would affect this post’s main theme (the massively larger numbers for Justice Abrahamson in Tables 1 and 2).
Another question concerns the categorization of critical discussions of a justice’s conduct. Although there are comparatively few such articles for most justices in this study, fully half or more of the references to Justices Ziegler and Gableman were disapproving—pertaining to judicial-ethics concerns for Justice Ziegler and election-campaign issues for Justice Gableman. Should articles with such commentary be included in a post devoted to assessing a justice’s eminence? In view of this post’s main theme—the much larger number of references to Justice Abrahamson than to the other justices—I will be conservative and count all of the judicial-ethics articles and electoral-campaign articles for Justices Ziegler and Gableman respectively. The total number of hits of any sort for both justices is very small (46 for Justice Ziegler and 36 for Justice Gableman at the time that I ran my searches), and, thus, any approach to categorizing them will not alter the post’s principal conclusions.
[4] The previous post was confined to citations of the justices’ majority/lead opinions. Today’s post includes references to separate opinions as well.
[5] I used the same estimation method for Table 2 as for Table 1. Gray-area questions are extremely rare when searching for references to publications and speeches.
[6] It bears emphasizing that the figures in this table are estimates, generated from random samples as described above. If a justice wrote only a couple articles, and if these articles were rarely cited by other authors, there is a reasonable chance that they might not be captured by my random sample—resulting in an estimate of zero for that justice.
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