With the arrival of spring, it becomes possible to estimate quite accurately the number of decisions that the justices will file by the time that they close the books on the current term at the end of July. The results have attracted more than casual interest over the past decade because of the historically small volume of cases during these years—an average of only 56 per term, and never more than 62. This compares to averages of 83, 78, and 110 for the three preceding decades, which are included in the following graph.[1]
When the justices issued 62 decisions in 2017-18, soaring above the previous year’s yield of 51, observers could wonder if the graph had begun a steady ascent. And even when the number slipped back to 58 the next term, it was still possible to imagine that the justices were attempting to average approximately 60 decisions per year. If so, however, they will almost certainly be disappointed by the result for 2019-20.
Through May 12, 2020, the court has filed 27 decisions, with 18 other cases beyond oral argument and awaiting judgment. It seems likely that a few more will be added to this total of 45—but not many. So far in 2019-20, the average period between oral argument and decision has been 112 days, which not only rules out cases in which briefing remains but also casts doubt on whether all of the handful of pending cases will reach the finish line by July.
This includes two cases with briefing completed and now “awaiting assignment” and a case that was submitted on briefs with oral argument waived. In addition, two more cases are on “hold status,” perhaps awaiting a ruling in other litigation. Even if this pair of cases is processed by July, they may well be consolidated, thus yielding at most one decision.[2]
Not only are these “potential” cases few in number, it is uncertain that every one of the 18 cases already “awaiting decision” will ultimately participate in the calculations. Four of them are Original Actions, which are sometimes rushed through without oral argument—and which do not necessarily generate full-fledged opinions for inclusion in our total.[3]
It appears, then, that even if all these cases in various stages of limbo are resolved this term, the court’s output will not surpass the upper 40s. It’s possible that an unusual surge of complete decisions in Original Actions could push the sum to 50 or so, but they lack the number required to boost the figure back to the neighborhood of 60—which had lately come to seem the norm.
[1] The figures omit orders pertaining to various motions, petitions, and disciplinary matters, but they do include deadlocked (3-3) per curiam decisions. Cases dismissed without a decision are excluded.
[2] The two cases are both titled Clean Wisconsin, Inc. v. DNR (2016AP1688 and 2018AP59).
[3] See for example Wisconsin Legislature v. Tony Evers (2020AP608-OA).
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