A New Minister of Dissents?

For decades, Justice Shirley Abrahamson’s dissenting opinions figured prominently in commentary on the Wisconsin Supreme Court, and, more recently, references to her frequent dissents have dotted assessments of her judicial career.  Not only were her dissents often “tart”—as her obituary in the New York Times put it—she wrote far more of them than any of her colleagues over a career that spanned 43 years.                  

Let’s take as our sample the decisions in which Justice Abrahamson participated from 2008-09 through 2017-18.[1]  This amounted to 534 cases, and in fully 136 of them (25%) she authored a dissent—a total easily surpassing that penned by any of her contemporaries.[2]  To be sure, some of these justices were not on the court for the full ten years, but when we compensate for this by calculating the average number of dissents written by each justice per term, the figure for Justice Abrahamson still heads the list displayed in Table 1.

How about today?  Does anyone appear to be stepping into Justice Abrahamson’s role as the court’s chief dissenter?  If asked to name a candidate, you could not be faulted for suggesting Justice Ann Walsh Bradley.  After all, she occupies second place in Table 1, and, like her friend Justice Abrahamson, she is a liberal on a court that still leans conservative—just the sort of person one would expect to author numerous dissents.

The fact that this makes sense helps explain the surprise that court observers may experience upon discovering that a different Justice Bradley—Justice Rebecca Bradley—has emerged this year as the court’s new dissent leader, and she has done so at a blistering rate that equals Justice Abrahamson’s ten-year averages.

Consider for example the information in Table 2, which shows how many dissents each justice has written so far in 2020-21.  Justice Rebecca Bradley has generated twice as many as any other justice, and her total of eight exceeds that of the three liberal justices (AW Bradley, Dallet, and Karofsky) combined.

Furthermore, Justice Rebecca Bradley’s share of all dissents written so far this term—8/24, or 33%—is close to Justice Abrahamson’s share (36%) of dissents penned during the ten terms under scrutiny above.  Not only that, Justice Bradley has dissented so frequently that her rate of 26%—8 dissents authored in the total of 31 decisions filed by the court to date—is slightly higher than Justice Abrahamson’s ten-year dissent rate of 25%.

This is especially noteworthy given that Justice Bradley is a conservative on a primarily conservative court.  If the court acquires a liberal majority following the 2023 election, it is reasonable to predict that she will surpass—quite possibly by a substantial margin—the rate-of-dissent records set by Justice Abrahamson.[3]

 

[1] We are omitting Justice Abrahamson’s final term, 2018-19, when her declining health prevented her from participating in several cases.

[2] It should be emphasized that we are only counting dissents that she authored, not those written by her colleagues which she joined.

[3] It is unlikely that anyone will match the total number of Justice Abrahamson’s dissents, given the length of her service and the fact that for much of this period the court decided many more cases than it does currently.

About Alan Ball

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

alan.ball@marquette.edu

SCOWstats offers numerical analysis of the voting by Wisconsin Supreme Court justices on diverse issues over the past 65 years.

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