As it commenced the 2023-24 term, the Wisconsin Supreme Court attracted national attention. With a new liberal majority poised to review significant controversies, observers anticipated rulings that would depart abruptly from the holdings of conservative colleagues who had long exercised the upper hand. Their predictions came to pass—first with the court’s order in December on electoral maps, followed by decisions on such issues as ballot drop boxes and separation of powers. In these decisions the liberal ascendancy is most visible. However, the unprecedented hegemony of the liberals is also striking when portrayed in statistical form, the subject of today’s post.
4-3 decisions and polarization
For several years SCOWstats has explored the court’s polarization from various angles. If, as noted in previous posts, a polarized court will likely contain a bloc of justices who almost always vote together and almost always in opposition (sometimes bitter) to another cluster of adamant justices, such groups of justices should be evident if the term “polarized” fits the Wisconsin Supreme Court.
Cases decided by 4-3 votes are a good place to start looking. The more frequently the same subsets of justices appear on contending sides—that is, the more constant the array of “friends and foes” in these cases—the clearer the symptom of polarization. Confining our gaze to current (and, in the case of Justice Roggensack, now-retired) members of the court, we find two trios of justices—three liberals (Justices AW Bradley, Dallet, and Karofsky) and three conservatives (Justices Roggensack, Ziegler, and RG Bradley)—regularly facing off during the three terms prior to 2023-24, as displayed in Table 1.[1]
The arrival in 2023-24 of a fourth liberal (Justice Protasiewicz) further accentuated this polarization, as the liberals, now a quartet, voted in concert (and, of course, prevailed) in all 4-3 decisions, an unparalleled outcome in recent memory.[2] Compare this domination to the record of the so-called liberal court during the tenure of Justice Louis Butler (2004-05 through 2007-08). Here, the three liberals (Justices Abrahamson, AW Bradley, and Butler) formed 4-3 majorities (usually with Justice Crooks) in scarcely more than half (57%) of these cases.[3]
Bloc cohesion
The four liberals did not just vote together in all 4-3 decisions, they maintained unanimity in every other decision as well—thus automatically part of every majority. This is one of the most notable features of the 2023-24 term, unmatched in the century or so covered by SCOWstats. In fact, only three times in the last 20 years have two justices (let alone four) voted in agreement in every case where both participated (Justices AW Bradley and Dallet in 2019-20, AW Bradley and Abrahamson in 2015-16, and Ziegler and Gableman in 2010-11). Moreover, while these pairs of justices voted in unison, it was sometimes in dissent. Never did more than one justice cast all their votes in the majority during any term in this period (Justices Gableman in 2014-15, Prosser in 2011-12, and Crooks in 2007-08). Even back in 1930-31, when 97% of the decisions were unanimous, “only” three justices always appeared in the majority. In 2023-24, it was four.
To be sure, the court filed a mere 14 decisions in 2023-24, leaving open the question of how tight this liberal bloc cohesion would have remained through, say, 40 decisions. No doubt a case would eventually have come along that prompted a defection from the bloc—perhaps a criminal case would have pried away Justice Karofsky, for instance, if past voting patterns endured. But, based on what we witnessed this term, liberal bloc cohesion in 2023-24 would likely have surpassed that for any other quartet of justices in recent decades, even with a larger case load. As shown in Table 2 regarding non-unanimous decisions, four justices rarely agreed more than half the time during the past five terms after Justice Gableman’s departure.
Justice Hagedorn
After his election in 2019, Justice Hagedorn soon became the least predictable member of the court and, until 2023-24, arguably the most important—certainly so in cases decided by 4-3 votes. This may not have been apparent during his first term (2019-20), as the court’s conservative majority was sufficient to prevail without him. However, with the electoral victory of Jill Karofsky over the conservative Justice Daniel Kelly in the spring of 2020, the court found itself polarized into the liberal and conservative trios noted above. Neither group could win without a fourth vote, and Justice Hagedorn became close to essential in the most contentious cases for the next three years, as detailed in Table 3.[4]
The replacement of Justice Roggensack by Justice Protasiewicz altered the influence of every justice, but especially so for Justice Hagedorn. Instead of continuing to fill out the majorities in most 4-3 decisions, he became largely irrelevant (along with Justices Ziegler and RG Bradley) in such cases, as the new liberal majority held sway in all of them. The difference is stark indeed between 86% and 0% in Table 3.
Conclusion
The advent of a clear liberal majority on the court—the first in modern memory—generated decisions reversing the court’s conservative momentum that had been most perceptible from the election of Justice Gableman in 2008 to the defeat of Justice Kelly in 2020. One might well be euphoric or appalled, but few could reflect on the change with indifference. Today’s post provides a look at this sea change from a statistical vantage point, where the transformation has been just as blunt as in the language of the justices’ decisions. Further information will follow in a week or so, as we focus more on the work of the seven justices individually during this pivotal term.
[1] As detailed below, Justice Hagedorn was by far the most common source of the fourth vote that each trio needed to become a majority during these three terms.
[2] These are the 4-3 cases: Rebecca Clarke v. Wisconsin Elections Commission; Catholic Charities Bureau, Inc. v. State of Wisconsin Labor and Industry Review Commission; Sojenhomer LLC v. Village of Egg Harbor; and Priorities USA v. Wisconsin Elections Commission.
[3] Over the four terms, the three liberals voted in the majority in 36 of the 63 cases decided by 4-3 votes. Hence the figure of 57%. In addition to these 36 decisions, there were six others in which one or two, but not all three, of the liberals joined conservative colleagues to form 4-3 majorities.
[4] The percentage for 2019-20 excludes State v. Mose B. Coffee, a 3-2 decision in which Justice Hagedorn did not participate.
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