When Allies Disagree

Some time ago an acquaintance recommended that I take a look at cases in which the court’s staunchest allies failed to see eye to eye, thereby raising the question of what could have prompted them to part company on these unusual occasions.  There have certainly been pairs of justices in past decades who qualified for this scrutiny by voting together almost invariably, but readers will likely find it of greater interest to pose this question of current justices—and so we shall.

Three pairs of justices now on the bench stand out as particularly steadfast allies, none more so than Justices Ann Walsh Bradley and Rebecca Dallet.  For years, Justice Bradley and the late Justice Shirley Abrahamson rarely voted in conflict with each other—and following Justice Abrahamson’s retirement at the end of the 2018-19 term, Justices Bradley and Dallet have found themselves in agreement every bit as frequently.  Indeed, from 2019-20 through 2020-21, these two “liberals” took opposing sides only twice in the 87 cases where both participated.  Meanwhile, two of the court’s “conservatives,” Justices Patience Roggensack and Annette Ziegler, also demonstrated conspicuous solidarity.  Their broad coincidence of views positioned them shoulder to shoulder on most issues, falling out only nine times in 91 cases during these same two terms.^[1]

Roggensack and Ziegler
The nine instances of disagreement contain some points of interest.  In two of the more “ideological” cases, for example—the conduct of elections (Timothy Zignego v. Wisconsin Elections Commission) and the eligibility of a religious school to receive state funds for transporting students (St. Augustine School v. Carolyn Stanford Taylor)—Justice Roggensack (and not Justice Ziegler) leaned toward the liberals—unpersuaded by arguments advanced by the state’s most prominent conservative legal entity, the Wisconsin Institute for Law and Liberty.

However, in two cases testing the authority of the Department of Natural Resources (DNR) to require environmental-impact studies or to set environmental-protection conditions on certain private ventures, it was Justice Ziegler who joined the liberals in ruling that the DNR possessed such authority—in the process, rejecting arguments presented on behalf of Republican legislators.^[2]

Also noteworthy are two cases intimating that Justice Ziegler is, along with the liberals, more sympathetic than Justice Roggensack to appeals challenging a county’s decision to involuntarily commit mentally-ill people and forcibly medicate them.^[3]

Finally, our sample includes a Fourth Amendment case (State v. Heather Jan VanBeek) in which Justice Ziegler was more prepared than Justice Roggensack to permit a policeman to prolong a traffic stop without the stop qualifying as a seizure under the Fourth Amendment.

AW Bradley and Dallet
Given that Justices AW Bradley and Dallet parted company in only two cases,^[4] conclusions about specific issues are extremely speculative—though one might note that in both cases it was Justice Bradley who stepped away from her liberal colleagues to join the conservatives.  Incidentally, in one of these cases (Waupaca County v. K.E.K.) she sided with the conservatives in supporting the extension of an involuntary commitment of a mentally-ill person.  We’ve seen that Justices Ziegler and Roggensack also differed in such cases, suggesting that for issues of involuntary commitment and medication, the customary liberal-conservative calculus may be less helpful than normal in predicting the justices’ votes.

Dallet and Karofsky
One other “liberal” pair—Justices Dallet and Jill Karofsky—also merit our attention, as they voted in harmony 92% of the time in 2020-21, Justice Karofsky’s first term of service.  They did, however, take opposing positions in four cases, and these reveal the most striking pattern among any of the pairs of justices under consideration.  All four decisions addressed appeals by individuals convicted of crimes, and in every instance Justice Karofsky left Justice Dallet (and Justice AW Bradley) to side with Justices Roggensack and Ziegler, who rejected the petitioners’ arguments.^[5]

Conclusion
The number of cases before us is so small that the impressions outlined above should be regarded as preliminary hypotheses that may well be revised or discarded in the light of decisions filed in 2021-22 and beyond.  Time will tell whether any justice continues to prove more willing than others to break occasionally from habitual allies—in certain types of “ideological” cases, perhaps, or environmental-regulation disputes, or criminal cases of one kind or another.  It will be particularly interesting to watch decisions involving involuntary commitments and forcible medication, as these have produced splits among liberal and conservative allies alike.  No doubt new patterns will emerge as well, and we’ll return to the topic someday to see if they have eclipsed the cautious conjectures ventured here.

[1] In addition to the seven cases specified elsewhere in this post, Justices Roggensack and Ziegler took different sides in Kathy Schwab v. Paul Schwab and Emer’s Camper Corral, LLC v. Western Heritage Insurance Company during the 2019-20 and 2020-21 terms.

[2] Clean Wisconsin, Inc. and Pleasant Lake Management District v. Wisconsin Department of Natural Resources and Clean Wisconsin, Inc., Lynda Cochart, Amy Cochart, Roger DeJardin, Sandra Winnemueller and Chad Cochart v. Wisconsin Department of Natural Resources.

[3] Langlade County v. D. J. W. and Winnebago County v. C.S.

[4] Justices Bradley and Dallet opposed each other in Ted Ritter v. Tony Farrow and Waupaca County v. K.E.K., both decided in 2020-21.  They did not split their votes in any decisions filed the previous term.

[5] The four cases are State v. Jamie Lane Stephenson; State v. Jordan Alexander Lickes; State v. Anthony M. Schmidt; and State v. Alan M. Johnson.  In Stephenson, the only case whose number does not bear the CR suffix, the petitioner sought review of a lower-court denial of his petition for discharge from his commitment as a sexually violent person.  In Johnson, the state was the petitioner, and Justice Karofsky joined Justices Roggensack and Ziegler in dissent—rejecting all three of Johnson’s arguments, rather than only one as the majority opinion did.