As the Wisconsin Supreme Court approached the start of its 2023-24 term, observers were struck by the scarcity of cases on the court’s calendar. In July 2023, for instance, attorney Dustin Brown reported that the court had granted review in only six cases for the upcoming term—just a “tiny fraction” of the number accepted by this point in prior summers. Indeed, a year earlier, the justices had already granted review in more than five times as many cases.[1] Was the court thus bound to issue markedly fewer decisions in 2023-24 than ever before? With the justices’ holiday lull now behind us, let’s take an initial look at the prospects.
Through the end of January this term, the court has filed one substantive decision—a yield dwarfed by the number of decisions on the books by January 31 during the previous six terms, as displayed in Table 1.[2]
As it happened, these figures from the end of January established a pattern that helped predict the total number of decisions that would be filed by the conclusion of each term. The additional information in Table 2 shows that, for each of the six terms from 2017-18 through 2022-23, the number of decisions filed by the end of January was approximately 21% of the term’s final tally. Never was the percentage lower than 19 or higher than 22. If this “rule” held, we could expect only around five decisions in 2023-24.
Such an astonishingly low figure is out of the question. Not only would it be shocking; there have been years earlier this century when the court filed just a handful of decisions by the end of January and still managed to accumulate a respectable total for the term as a whole. In 2009-10, for example, 57 decisions followed the lone decision recorded by the end of January, and in 2007-08 the court added 64 decisions to the four already issued before February 1.[3]
No doubt the justices will make up some ground in similar fashion over the next few months. However, there do not appear to be enough cases in the pipeline for them to even approach the totals for 2009-10 or 2007-08. Come spring, we’ll return with a precise estimate of this term’s output and see whether it is likely to sink below the court’s low-water mark of 41 decisions in 2015-16.
[1] Dustin Brown, “The Calm Between the Storms: A Review of the Wisconsin Supreme Court’s 2022-23 Term and Preview of 2023-24,” State Democracy Research Initiative, July 17, 2023. The quotation is on page 10.
[2] The figures in this post do not include the small number of 3-3 per curiam decisions and cases dismissed as improvidently granted.
[3] Click here for a table covering every term back to 2004-05.
About Alan Ball
Speak Your Mind