A Noteworthy Article

Let me recommend a provocative article by Skylar Croy (a former law clerk and executive assistant to then-Chief Justice Patience Roggensack): “The Demise of the Law-Developing Function: A Case Study of the Wisconsin Supreme Court,” published in Suffolk Journal of Trial & Appellate Advocacy, vol. 26 (2020-21), issue 1, pp. 1-48.  

The following abstract from the manuscript should make it clear that this is timely and stimulating essay.

“This Article examines the rise in decisions issued by the Wisconsin Supreme Court with no majority opinion. It argues that the rise is partly due to an anti-consensus building philosophy that some conservative justices have adopted. Pursuant to this philosophy, if an opinion does not state almost precisely what the justice believes, the justice cannot join it. Wisconsin’s problem may be indicative of a nationwide trend.

This philosophy is at odds with the law-developing function of the Wisconsin Supreme Court. When a sufficient number of justices take such a stance, the Wisconsin Supreme Court becomes little more than an expensive error-correcting court and that counteracts the purpose of having an intermediate appellate court.

This philosophy also disrupts the balance between conservative and liberal jurisprudence. Because of it, conservative jurisprudence is often left unprotected by the doctrine of stare decisis. Stated otherwise, disagreement among conservative justices results in less law developing in a manner that is generally consistent with their conservative principles. In contrast, liberal justices are not opposed to consensus building, so jurisprudence that they develop is more likely to have precedential value. Additionally, the rise has led some attorneys to ask whether the Wisconsin Supreme Court needs to rethink its position on “minority vote pooling,” which conservative justices have fought against. This Article concludes that conservative justices adopting an anti-consensus building philosophy need to reconsider their positions. It also offers a plethora of ideas for minimizing the number of decisions issued without a majority opinion.”