A recent post on the rapidly increasing length of Wisconsin Supreme Court decisions—whose average page count has doubled since the mid-1990s—ended with a hypothesis to be tested following the 2014-15 term.  More specifically, in light of the new rules adopted by the court to reduce the amount of time between oral argument and decision filing, it seemed plausible to wonder if hastening the filing of decisions might also trim their length.  For a time, though, it remained unclear whether the new rules would achieve even the goal of shortening the time to filing, let alone correlate with changes in other areas, notably the average length of decisions.  But now that complete information for 2014-15 is available, both questions can be answered—at least until the next term hits its stride.[1]

As noted in “Some Initial Observations,” the court did indeed cut significantly the time taken to file decisions compared to its average for recent terms.  But—to focus on the central question here—this reduction of time was not accompanied by a reduction of bulk.  As illustrated in the graph, the average number of pages per decision climbed from 49 in 2013-14 to 52 in 2014-15, one page short of its high point for the graph’s twenty-year interval—and quite possibly the court’s entire history.

Given the apparent objective of the new rules to discourage concurrences and dissents, it should occasion no surprise that separate opinions in 2014-15 did not average any more pages per decision than they did in the previous term (Table 1).  In fact, one might have expected the average to drop in 2014-15, because the number of separate opinions fell from 82 in 2013-14 to 60 in 2014-15.  As it happened, the average would have plunged were it not for the mammoth John Doe decision issued in July of 2015.  This decision included 300 pages of separate opinions, and without it the average of 17 pages of concurrences and dissents per decision in 2014-15 would have fallen to 12 pages.  In contrast, the average length of a majority opinion in 2014-15 would have declined only from 33 to 31 pages, had the John Doe decision been omitted from the calculations.

As in years past, the average length of majority opinions differed a good deal among individual justices (Table 2), with the largest gap apparent between Justices Bradley and Roggensack on the one hand (25 and 26 pages, respectively) and Justices Ziegler and Gableman on the other (38 and 41 pages).  Consistent with the longer majority opinions issued by the court as a whole in 2014-15, five of the seven justices posted higher average page counts than in the previous term. 

So far, then, the court’s new rules to hasten the filing of decisions have succeeded on that score, but without—as yet—producing discernible movement on certain other fronts where one might have expected to detect concurrent influence.  For instance, instead of the court’s brisker pace increasing the number of decisions filed—a plausible result—the total fell (Table 1), and the average length increased.  Fewer and longer decisions are certainly compatible outcomes and may represent the new normal compared to the court’s output in the 1990s.  Still, it would be interesting to know if the justices view either, or both, of these outcomes as desirable.  Perhaps a year from now, with the results of the 2015-16 term in hand, we will discover some clues.

 

[1] Calculations for 2014-15 did not include (1) decisions arising from disciplinary proceedings against lawyers; (2) orders pertaining to motions for reconsideration and rulings by the Board of Bar Examiners; and (3) a per curiam decision (Sohn Manufacturing Inc. v. Labor and Industry Review Commission).

These tables are derived from information contained in 73 Wisconsin Supreme Court decisions filed between September 1, 1994, and August 31, 1995.  The total of 73 decisions does not include rulings arising from such undertakings as (1) disciplinary proceedings against lawyers and judges and (2) motions for reconsideration and petitions for supervisory writ.

Occasionally, the Court’s records contain separate entries for individual cases that were ultimately consolidated and resolved by a single decision.  If two or more cases were combined in this manner, the decision is counted only once for the purposes of the following tables.

Two additional cases—deadlocked (3-3) per curiam decisions (State v. Ameritech Corporation and State v. Young)—figure only in the “Number of Oral Arguments Presented” table. 

The tables are available as a complete set and by individual topic according to the subsets listed below.

Four-to-Three Decisions
Decisions Arranged by Vote Split
Frequency of Justices in the Majority
Distribution of Opinion Authorship
Frequency of Agreement Between Pairs of Justices
Average Time Between Oral Argument and Opinions Authored by Each Justice
Number of Oral Arguments Presented by Individual Firms and Agencies

 

Now that the Supreme Court has issued its last substantive decision for the 2014-15 term, researchers who examine the court’s work may encounter some findings that they had not anticipated.

Most surprising, given the frequent reports of turmoil that beset the court in 2014-15, is the near elimination of 4-3 decisions and a correspondingly large increase in unanimous decisions.  Never before, over the previous 20 years, has there been only one 4-3 decision in a term—even in 1995-96, when 87% of the decisions were unanimous.[1]  Over the last six terms before 2014-15 (during which the current justices have served together), 4-3 decisions averaged nine (and never fewer than four) per term.

Had one been told in advance that the 2014-15 term would yield only a single 4-3 decision, it would not have been farfetched, given the tension evident among the justices, to predict a large increase in 5-2 and/or 6-1 decisions, heralding the isolation of Justices Abrahamson and Bradley.  This makes the dramatic increase in unanimous decisions—up from 30% of all decisions in 2013-14 to 55% in 2014-15—so remarkable.  (See Table 1)  To be sure, the percentage of unanimous decisions was considerably higher in the mid-1990s, and the figure of 30% in 2013-14 is low even for the period in which the court has maintained its current composition.  But it is striking that relations between the justices could grow more openly acrimonious in 2014-15—worse than ever, it appeared—at the same time that the percentage of unanimous decisions soared.

This arresting development recalls an article by Adam Liptak last summer in which he speculated on possible reasons for the marked increase in unanimous decisions issued by the US Supreme Court during its 2013-14 term.  More specifically, Liptak wondered how a court “firmly divided along partisan lines” could vote unanimously in 65% of its orally argued cases, the highest share “since at least 1953.”  Part of the reason might have been a smaller number of ideologically-infused cases, he guessed, and perhaps additional study will find that something of the sort played a part in Wisconsin in 2014-15.

Be that as it may, Liptak also observed that the nine justices “are sensitive to the accusation that they are motivated by politics,” and “their efforts to find common ground may have been partly an attempt to counter the charge that they are, in Justice Stephen G. Breyer’s words, ‘nine junior varsity politicians’ motivated by partisan agendas better left to elected officials.”  Perhaps the justices in Madison were responding, if only subconsciously, to frequent charges last year that the court was bitterly polarized.  I would be grateful to learn of other theories that might help account for the substantial increase in unanimous decisions issued during this turbulent period at the summit of Wisconsin’s judiciary.

Liptak added, by the way, that the US Supreme Court’s apparently routine unanimity was a testament to the savvy, consensus-building leadership of Chief Justice John Roberts.  If any of the justices on the Wisconsin Supreme Court are playing such a role, it has yet to become evident.

One of the indications of disquiet among Wisconsin’s justices this term involved the new rules adopted to reduce the time taken to issue decisions following oral argument (and, complained Justice Abrahamson, to reduce discussion of these decisions among the justices).[2]  There seems good reason to conclude that these new rules have had a significant impact, as the average period from oral argument to the filing of a decision in 2014-15—112 days—represents a 31% decrease in the average for 2013-14—162 days.  It bears noting that the average was a good deal lower in the mid-1990s (86 days in 1995-96 and 90 days in 1996-97, for example), but the fact remains that the average for 2014-15 chopped slightly more than a month off the average (148 days) for the preceding six terms.

As one would expect, sizeable differences remained among individual justices in 2014-15, with Justice Prosser’s average (173 days between argument and filing) roughly double the averages for Justices Crooks, Ziegler and Gableman.  Still, six of the seven justices, including Justice Prosser, reduced the average number of days taken to release their majority opinions compared to their averages for 2013-14, as detailed in Table 2.  Only Justice Bradley saw her average increase, perhaps because of the time absorbed by her reelection campaign.

While the court’s average of 113 days between oral argument and decision filing in 2014-15 amounts to a considerable reduction in the average number of days that had been required during the previous term, there is still some way to go to reach the goal sought by the authors of the new rules, who envisioned a maximum of 107 days “from first circulation of a majority opinion to mandate.”  It will be interesting to see if the number of days to filing continues to decrease in 2015-16.

[1] In 1995-96 there were two 4-3 decisions.

[2] The new rules may be found in Justice Abrahamson’s separate opinion in State v. Gonzalez.  In her commentary on the rules, Justice Abrahamson also expressed concern that “these provisions, as well as the short time periods allowed for separate writings, are unwelcoming to concurrences and dissents.”  Whether by coincidence or not, the number of separate opinions did indeed drop in 2014-15 compared to the previous term—by 27%, from 82 to 60.  For more detailed information, including figures for individual justices, see the data in the SCOWstats posts for 2013-14 and 2014-15.

These tables are derived from information contained in 53 Wisconsin Supreme Court decisions filed between September 1, 2014, and the end of the court’s term in July, 2015.[1]  The total of 53 decisions does not include the following items contained in the Supreme Court’s listing of opinions and dispositional orders for this period: (1) decisions arising from disciplinary proceedings against lawyers; and (2) orders pertaining to motions for reconsideration and rulings by the Board of Bar Examiners.

Sometimes the Court’s listing of opinions and dispositional orders contains separate entries for individual cases that were consolidated and resolved by a single decision.  If two or more cases were consolidated in this manner, the decision is counted only once for the purposes of the following tables.

In addition to the 53 decisions noted above, a deadlocked (3-3) per curiam decision was filed: Sohn Manufacturing Inc. v. Labor and Industry Review Commission.  This is included only in the “Number of Oral Arguments Presented” table.

The tables are available as a complete set and by individual topic according to the subsets listed below.

Four-to-Three Decisions
Decisions Arranged by Vote Split
Frequency of Justices in the Majority
Distribution of Opinion Authorship
Frequency of Agreement Between Pairs of Justices
Average Time Between Oral Argument and Opinions Authored by Each Justice
Number of Oral Arguments Presented by Individual Firms and Agencies

[1] According to the Clerk’s office, no additional substantive decisions will be filed after July 16.  The decisions may be found on the Wisconsin Court System website.

A reader (who prefers not to be acknowledged) suggested the title’s question, prompting me to cast a net for pertinent information contained in the decisions published on the court system’s website.  We’ll focus on the six terms during which the current group of seven justices have served together (2008-09 through 2013-14) and pose the anonymous reader’s question for each justice individually—that is, how frequently did each justice join concurrences and dissents written by each of his or her colleagues?

The initial response is displayed in Table 1, which should be read as follows.  The justices in the column at the left end of the table are those who joined concurrences or dissents, while the row of names across the top of the table lists the authors of the opinions joined by justices in the column at the left.  For instance, beginning with Justice Abrahamson at the top of the left-hand column and following her row across the table, we see that she joined Justice Bradley’s concurrences and dissents 62 times, and on 17 occasions she joined those written by Justice Crooks.  Continuing along the row, we find that she joined six of Justice Prosser’s concurrences/dissents, one written by Justice Roggensack, one by Justice Ziegler, and none by Justice Gableman.[1]

Table 1 suggests a number of points noted in previous SCOWstats posts.  The fact that Justices Abrahamson and Bradley wrote far more concurrences and dissents than the other five justices is readily discernible, for example, as is the rarity of agreement between the two “liberal” justices (Abrahamson and Bradley) on the one hand and the three most “conservative” justices (Roggensack, Ziegler, and Gableman) on the other.

As it turned out, the two “liberals” joined only four of the 97 concurrences/dissents written by the three “conservatives,” while the three “conservatives” joined only three of the 205 concurrences/dissents written by the two “liberals.”  Exploring such interactions in more detail, Table 2 specifies how many of each justice’s opinions were joined by any other justice.  As an illustration of how to interpret the information, take Justice Prosser’s column in the middle of the table.  The column indicates that Justice Prosser wrote 56 concurrences/dissents and that Justice Abrahamson joined 6 of these (or 11%).  Justice Bradley joined 7 of the 56 (13%), Justice Crooks 2 (4%), Justice Roggensack 1 (2%), Justice Ziegler 2 (4%), and Justice Gableman 9 (16%).

One aspect of the first table that might raise an eyebrow is the information for Justice Gableman.  Readers would expect Justices Abrahamson and Bradley to join each other’s opinions routinely, and they would also expect frequent mutual endorsement between Justices Roggensack and Ziegler—all of which is evident in the table’s figures.  But what happened with Justice Gableman?  Although jaws might not drop upon discovering that Justice Crooks (to say nothing of Justices Abrahamson and Bradley) declined to join a single one of Justice Gableman’s separate opinions, even his closest allies on the bench added their names to only a handful of concurrences and dissents credited to him. 

This gap between Justice Gableman and his colleagues is displayed more clearly in Table 3, which provides totals for the columns and rows in Table 1.  Here we see that although Justice Gableman joined other justices’ concurrences/dissents in large number—55 times, slightly more than the total for Justices Roggensack and Ziegler combined—his six colleagues, including his fellow conservatives, joined his own opinions only seven times.

I’m not certain how to account for Justice Gableman’s unusually high rate of joining other justices’ opinions—far above the figures for the other conservatives (but not the two liberals).  Regarding the extremely small number of instances where other justices joined his own concurrences/dissents, much of the explanation lies in the fact that Justice Gableman rarely wrote such opinions.  As noted in Table 4 (and Table 2), he submitted only 12 concurrences/dissents over the entire period, an average of only two per term, leaving other justices few opportunities to associate themselves with his analysis if they were so inclined.

To compensate for the small number of concurrences/dissents written by Justice Gableman, Table 4 includes a column displaying the ratio of column 2 (the number of times that a justice’s concurrences/dissents were joined by other justices) over column 3 (the total number of concurrences/dissents written by the justice in question).  This should help adjust for the fact that the hefty number of “joiners” linked to Justices Abrahamson and Bradley owes much to the unusually large volume of concurrences and dissents that they authored.

Bear in mind when interpreting the ratios in Table 4 that a figure of “1” would result if each of an author’s concurrences/dissents were joined by one other member of the court.  Justices Bradley (0.94) and Roggensack (1.05) were extremely close to this mark, while Justices Ziegler (1.22) and especially Crooks (1.33) were well above it—suggesting that a third of Justice Crooks’s decisions attracted two “joiners” rather than one.  At the spectrum’s other end, the ratios for Justices Prosser (0.48) and Gableman (0.58) are consistent with roughly half of their concurrences/dissents appearing without public endorsement from any other justice.

However, these ratios do not reveal the actual share of a justice’s opinions that attracted “joiners,” because the “joiners” were not distributed evenly across a justice’s concurrences/dissents.  Some opinions were joined by more than one justice, meaning that the total number of “joiners” was greater than the total number of opinions that they endorsed.  Taking the 12 concurrences/dissents authored by Justice Gableman as an example, 3 of the 12 opinions were joined by 2 justices each; a fourth opinion gained the support of 1 justice, and the remaining 8 opinions appeared without endorsement from any colleague.  Thus the 7 justices who joined Justice Gableman’s 12 concurrences/dissents lent their names to a total of only 4 of these opinions.  Similar calculations can be performed for the other justices, and they yield the results assembled in Table 5.

Although these figures do not explain the unusually small number of concurrences/dissents authored by Justice Gableman, they allow the inference that he is not such a statistical outlier regarding the inclination of other justices to join the opinions that he did write.  While Justice Gableman’s colleagues joined only 33% of his separate opinions—far below the percentages for most of his colleagues—Table 5 reveals that the percentage for Justice Prosser was even (a bit) lower.  Thus, in this respect, Table 5 tempers the impression created by Table 1.

 

[1] On rare occasions, a justice joined only part of another justice’s concurrence or dissent.  For the tables in this post, such instances are counted as joining the opinion.
In a tiny number of cases, other factors can make it difficult to decide how to categorize an opinion.  As an example, consider Wisconsin Prosperity Network v. Myse (2010 AP1937-OA).  Here the court produced a 3-3 per curiam decision to which Justice Abrahamson added a brief note, labeled a concurrence.  I omitted it from the calculations for this post, but it would not have been preposterous to include it.
Kroner v. Oneida (2010AP2533) serves as an example of a different sort of categorization challenge.  Justices Abrahamson and Bradley were listed as joining an opinion by Justice Crooks.  Justices Prosser and Roggensack wrote their own concurring opinions (and Justices Ziegler and Gableman joined Justice Roggensack’s).  When all of this was sorted out, Justice Crooks’s opinion emerged as a “majority” opinion of sorts, but for this post I counted it as a concurrence joined by Justices Abrahamson and Bradley.

In Custodian of Records v. State (2004), the Wisconsin Supreme Court cautioned that the “power wielded by the government is considerable,” creating “a potential for infringing on Fourth Amendment and other constitutional rights.”  This was not a perfunctory observation buried in an analysis of other issues.  It followed a six-page discussion under the heading “Fourth Amendment principles,” crafted to support the decision’s conclusion that the State’s quest for evidence of criminal activity was “unreasonable” in the case at bar.  Not only that, the majority opinion saw fit to marshal its Fourth-Amendment arguments despite the fact that neither of the contending parties even mentioned the amendment in their briefs.

Were this not enough to encourage nascent criminal-defense lawyers to feature Fourth-Amendment arguments wherever possible, any remaining doubt might have crumbled upon learning the identity of the decision’s author—Justice Roggensack, one of the court’s most conservative members.  If even she saw fit to rely so heavily on the Fourth Amendment to shield citizens from an aggressive search by the state, surely the court would approve Fourth Amendment protections in other cases as well.  And yet, a perusal of the court’s decisions over the past nineteen terms (1995-96 through 2013-14)[1] suggests that few arguments have less chance of success than appeals invoking the Fourth Amendment.

During this 19-term period, the court heard 81 cases in which the Fourth Amendment generated at least one of the issues presented, and in only 10% of these cases did the court rule favorably on the defendants’ Fourth-Amendment arguments.  In the most recent six terms (2008-9 through 2013-14), during which the court’s current members have all served together, this figure dropped to 7% (2 “favorable” rulings out of a total of 30 Fourth-Amendment cases).  As one might expect, Fourth-Amendment appeals fared better during the four terms in which Justice Butler joined the court (2004-5 through 2007-8), but even here the “success” rate was only 17% (2 out of 12 cases)—and over the preceding 9 terms (1995-96 through 2003-4) it was only 10% (4 out of 39 cases).

To appreciate how low these percentages are, consider the “success” rates in criminal cases of all types (Fourth-Amendment and all other criminal cases taken together).  Over our 19-term period, the court heard 449 criminal cases, of which 25% (114 cases) resulted in decisions favorable to the defendants—fully two and a half times the 10% “favorable” rate for Fourth Amendment arguments alone.  Of the 120 criminal cases heard during the six most recent terms, 13% (16 cases) yielded decisions that favored defendants—nearly twice the 7% rate of “favorable” outcomes for Fourth-Amendment appeals over the same period.  This information appears in Table 1, along with comparable figures for the “Butler years” and the preceding 9 terms, all of which suggest that cases relying on Fourth-Amendment arguments faced a considerably stiffer challenge than criminal cases generally.[2]

Table 1

Terms	% of all criminal cases resulting in favorable rulings for defendants	% of Fourth-Amendment cases resulting in favorable rulings
2008-9 through 2013-14	13% (16/120)	7% (2/30)
2004-5 through 2007-8	26% (20/77)	17% (2/12)
1995-96 through 2003-4	30% (77/254)	10% (4/39)
Total for all 19 terms	25% (114/449)	10% (8/81)

Just as dramatic is the difference in voting tendencies among individual justices.  For instance, Table 2 indicates that Justices Abrahamson, Butler, and Bradley accepted Fourth-Amendment arguments in over 60% of their votes.  The fact that only 17% of Fourth-Amendment decisions favored defendants during Justice Butler’s tenure demonstrates how wide the gulf was between these three justices and the other members of the court on this issue.

Regarding the current justices, it is interesting to note that Justice Prosser, often labeled a conservative, voted in favor of Fourth-Amendment arguments at two and a half times the rate of Justice Crooks, more commonly characterized as a “swing vote” than a conservative in the press.  Finally, the gap between Justices Abrahamson and Bradley on the one hand (accepting 72% and 63% of Fourth-Amendment arguments, respectively) and Justices Ziegler (6%), Gableman (3%), and Roggensack (2%) is enormous.  I do not recall any other issue in previous SCOWstats posts where the difference in voting rates between current “liberal” and “conservative” justices has been so stark.

Table 2[3]

Justices	% of cases in which individual justices favored the Fourth Amendment arguments presented by defendants (1995-96 through 2013-14)
Abrahamson	72% (58/81)
Butler	67% (8/12)
Bradley	63% (50/80)
Bablitch	33% (12/36)
Geske	20% (2/10)
Prosser	18% (12/68)
Sykes	8% (2/25)
Steinmetz	8% (1/13)
Crooks	7% (5/76)
Ziegler	6% (2/35)
Wilcox	4% (2/46)
Gableman	3% (1/30)
Roggensack	2% (1/44)

Given a judicial climate so inhospitable to Fourth-Amendment arguments,[4] how should one explain the court’s hearty endorsement of Fourth-Amendment protection in Custodian of Records v. State, where neither party addressed the amendment at all?  This seems to have puzzled Justice Abrahamson, who wondered if “[m]aybe something was in the air, or water …”[5]

In this instance, perhaps one could seek an answer in the nature of the people threatened by the State’s demands.  They were not accused of possessing heroin or child pornography.  Instead they were unnamed Wisconsin State legislators, suspected by the Dane County District Attorney of illegal activity in connection with the political caucuses of that period.  Hence the John Doe subpoena for a sweeping array of legislative communications, which the court found overly broad and thus an unreasonable search under the Fourth Amendment.  (Justice Abrahamson, by the way, agreed that the subpoena was too broad but maintained that this conclusion could, and should, have been reached from the arguments briefed by the parties.)

There may well be additional explanations for such an ardent embrace of the Fourth Amendment by a majority of justices normally disinclined to apply it, and I would be grateful for any conjectures that readers can offer.

[1] The decisions may be found on the Wisconsin Court System website.

[2] The category “all criminal cases” encompasses all cases whose numbers end with the CR suffix, except for those resulting in per curiam decisions or (in five instances) decisions that were difficult to regard as either favorable or unfavorable for the defendants.  Also, it should be noted that four of the Fourth-Amendment cases do not have CR suffixes and thus would not be included in the “all criminal cases” calculations.  However, their number is so small that their absence from the “all criminal cases” category has virtually no effect on the percentages in Table 1.

[3] On rare occasions, a justice would accept a Fourth-Amendment argument but affirm a defendant’s conviction for other reasons.  In State v. Subdiaz-Osorio, for instance, Justice Bradley concluded that, in the context of the Fourth Amendment, the warrantless search conducted in the case should not have been regarded by the circuit court as justified.  Thus I categorized her opinion as favoring a Fourth Amendment argument—even though she concluded that the circuit court’s error did not contribute to the defendant’s conviction.

Custodian of Records v. State is not included in these calculations, because neither of the parties argued or briefed the Fourth Amendment.

Justice Day is not included in the table because the data cover only his last term (1995-96) on the bench.

[4] It would be interesting to know if Fourth-Amendment arguments have fared differently in Wisconsin’s lower courts, despite their chilly reception in the Supreme Court.

[5] Custodian of Records for the Legislative Technology Services Bureau v. State (In re Doe), 2004 WI 149, ¶5 (order denying reconsideration) (Abrahamson, C.J., dissenting).

Commenting last month in the New York Times, Adam Liptak noted that decisions issued by the United States Supreme Court have grown substantially longer over the years, prompting him to choose such terms as “sprawling” and “metastasizing” to characterize the fruit of the justices’ labors.

Had Liptak turned his attention to Wisconsin’s Supreme Court, he would doubtless have offered a similar assessment, because decisions issued by the justices in Madison now require an average of approximately 50 pages to convey their analysis.  Just as striking as the length of these decisions is the pace at which they have grown.  As recently as 1995-96 and 1996-97, Supreme Court decisions in Wisconsin averaged 23 pages.  Thereafter, their length increased steadily until the average had more than doubled by 2007-08—and the following years continued to yield decisions approximately 100 percent longer than those of the mid-1990s.

Averages for each of the 19 terms currently covered by the SCOWstats database are presented in Table 1, and they may also be viewed as a graph.

Table 1    Average Number of Pages per Decision[1]

Term	Page Length
2013-14	49
2012-13	53
2011-12	44
2010-11	46
2009-10	50
2008-09	44
2007-08	52
2006-07	44
2005-06	42
2004-05	44
2003-04	40
2002-03	38
2001-02	33
2000-01	36
1999-00	33
1998-99	30
1997-98	31
1996-97	23
1995-96	23

One factor at work here is the increasing number of concurring and dissenting opinions, which have added to decisions’ bulk.  Tables 2a and 2b reveal that concurrences and dissents accounted for only 3 pages per decision during the earliest term of our period (1995-96), but by 2013-14 the figure had ballooned to 17 pages per decision.  This increase of 467 percent is remarkable, but it accounts for only about half the number of pages by which decisions have grown.  The same tables demonstrate that majority opinions also swelled substantially during these years—from an average of 19 pages in 1995-96 (and 17 pages in 1996-97) to 30 pages in 2013-14 (and 34 pages in 2012-13).

Table 2a                     Average Number of Pages per Decision

	Majority opinion pages	Concurring and dissenting opinion pages
1997-98 (72 decisions)	23	5
1996-97 (82 decisions)	17	4
1995-96 (75 decisions)	19	3
Weighted average for all three terms	20	4

 

Table 2b                     Average Number of Pages per Decision

	Majority opinion pages	Concurring and dissenting opinion pages
2013-14 (61 decisions)	30	17
2012-13 (44 decisions)	34	17
2011-12 (59 decisions)	31	11
Weighted average for all three terms	31	15

 

As one might expect, the average length of majority opinions varies considerably among the justices.  In 2012-13, for instance, majority opinions authored by Justice Prosser averaged 46 pages—77 percent longer than Justice Crooks’s average of 26 pages.  During the following term, the average length of Justice Ziegler’s majority opinions exceeded those of Justice Bradley by 50 percent.  Comparisons between any pair of justices over the three most recent terms are available in Table 3.

Table 3                   Average Length of Majority Opinions Written by Each Justice

Justice	2011-12	2012-13	2013-14
Abrahamson	38 pages	40 pages	29 pages
Bradley	27 pages	26 pages	22 pages
Crooks	29 pages	26 pages	27 pages
Prosser	32 pages	46 pages	36 pages
Roggensack	27 pages	34 pages	29 pages
Ziegler	30 pages	32 pages	33 pages
Gableman	36 pages	34 pages	32 pages

Table 4, which covers the earliest years of our period, may be compared to Table 3 as a means of illustrating the rapid increase in the size of opinions over 19 terms.  This information also allows us to focus on three justices (Abrahamson, Bradley, and Crooks) who have served long enough on the court to appear in both tables.   Computing weighted averages for the three terms covered in each table, we find that Justice Abrahamson’s majority opinions averaged 19 pages during the period 1995-96 through 1997-98 and 35 pages during the period 2011-12 through 2013-14—an increase of 84 percent.  Justice Bradley’s majority opinions grew by 39 percent (18 pages to 25 pages), while Justice Crooks recorded an increase of 29 percent (21 pages to 27 pages).[2]

Table 4                    Average Length of Majority Opinions Written by Each Justice

Justice	1995-96	1996-97	1997-98
Abrahamson	22 pages	18 pages	16 pages
Bradley	18 pages	16 pages	20 pages
Wilcox	21 pages	15 pages	27 pages
Bablitch	17 pages	13 pages	21 pages
Steinmetz	13 pages	13 pages	28 pages
Geske	21 pages	26 pages	25 pages
Day	19 pages	—	—
Crooks	—	19 pages	23 pages

Disputes will persist as to whether the court’s decisions should be described as bloated or comprehensive, but there can be no doubt that recent opinions are much longer than those drafted little more than a decade ago.  Less clear is whether this trend will persist in view of the court’s new rules designed to reduce the time between oral argument and the filing of decisions.  A reasonable hypothesis could surmise that shortening the gestation period of decisions will also affect their birth weight, although the current turmoil on the court complicates predictions on this score.  However, with the conclusion of the 2014-15 term close at hand, we will soon be able to replace conjecture with certainty.

 

[1] The figures include title pages, majority opinions, concurrences, and dissents.

[2] The weighted average for Justice Crooks covered only two terms in Table 4, because he did not join the court until the 1996-97 term.  Weighted averages are used because the number of opinions written by the justices varied slightly from term to term.

This post compares some of the findings of the previous post (“Public Defender Outcomes, 1995-96 through 2013-14”) with the outcomes obtained by other attorneys who presented oral arguments in the same category of cases—those featuring criminal-defense issues and indigent-defense issues.  Here we will narrow our focus to the six terms (2008-09 through 2013-14) in which the Court’s current members have occupied the bench, and begin by considering the 88 cases in this category where defense attorneys from outside the Office of the Public Defender delivered oral arguments.[1]

Of these 88 cases, the attorneys in question obtained a favorable outcome in 13, or 15% of the total.  The year-by-year results are as follows.
2013-14: 2/16=13%
2012-13: 2/15=13%
2011-12: 3/12=25%
2010-11: 2/16=13%
2009-10: 3/16=19%
2008-09: 1/13=8%

As one would expect, the voting records of individual justices vary greatly.  In the ratios below, the denominator indicates the number of oral arguments heard by a justice out of the total of 88 cases.  The numerator indicates how many times a justice favored the position advocated by defense lawyers from outside the Office of the Public Defender.
Abrahamson 49/85=58%
Bradley 45/87=52%
Crooks 16/85=19%
Prosser 16/81=20%
Roggensack 11/88=13%
Ziegler 8/87=9%
Gableman 7/85=8%

The following tables compare results obtained by attorneys from the Office of the Public Defender with the outcomes in our batch of 88 cases handled by defense lawyers employed outside the ranks of the Public Defenders.

             Percentage of Cases in which a Favorable Result was Obtained

	Public Defenders	Defense Attorneys from Outside the Office of the Public Defender
2013-14	13% (2/15)	13% (2/16)
2012-13	33% (3/9)	13% (2/15)
2011-12	33% (5/15)	25% (3/12)
2010-11	0% (0/7)	13% (2/16)
2009-10	10% (1/10)	19% (3/16)
2008-09	0% (0/5)	8% (1/13)

The six-term success rate for Public Defenders of 18% (11/61) was slightly, but not dramatically, higher than the six-term success rate of 15% (13/88) for defense lawyers who were not Public Defenders.

These two categories of attorneys also received similar percentages of favorable votes from individual justices—with the striking exceptions of Justices Abrahamson and Bradley, who voted in favor of Public Defenders at a considerably higher rate than they sided with defense lawyers outside the Office of the Public Defender.

Percentage of Cases in which a Favorable Vote was Received, 2008-09 through 2013-14

Justices	Public Defenders	Defense Attorneys from Outside the Office of the Public Defender
Abrahamson	70% (43/61)	58% (49/85)
Bradley	66% (40/61)	52% (45/87)
Crooks	18% (11/61)	19% (16/85)
Prosser	20% (11/56)	20% (16/81)
Roggensack	11% (7/61)	13% (11/88)
Ziegler	10% (6/61)	9% (8/87)
Gableman	13% (8/61)	8% (7/85)

 

[1] This total of 88 cases does not include three per curiam decisions, and it also omits State v. Long (2007AP2307-CR), which is difficult to categorize as either a favorable or unfavorable outcome for the defendant.  In Long the Court upheld the defendant’s conviction but accepted his argument that he was not a “persistent repeater.”

This post presents findings from an examination of 201 cases in which attorneys from the Wisconsin State Public Defender’s Office delivered oral arguments before the Supreme Court during a period covering nineteen terms (1995-96 through 2013-14—the current extent of the SCOWstats database).[1]

Our focus centers on the outcomes—categorized as either “favorable” or “unfavorable” toward the positions advocated by the Public Defender’s attorneys—and we’ll begin by considering the terms during which the Court’s current set of justices have served together (2008-09 through 2013-14).  These six terms have yielded 61 cases in the category under scrutiny here, and of these 61 decisions, only eleven—or 18%—favored the Public Defender’s positions.  In contrast, during the previous 13 terms (1995-96 through 2007-08), 32% of the 140 relevant decisions sided with the Public Defender.

The following list is a year-by-year compilation of the percentages of favorable outcomes for the Public Defender, with figures that also specify the total number of cases heard each term in which the Public Defender’s attorneys delivered oral arguments.  The line for 2013-14, for instance, indicates that the Court sided with the Public Defender’s attorneys in two of 15 decisions—or 13% of the time.  Over the years, the Court’s membership changed several times, and these alterations are indicated at the appropriate points in the list below. 

2008-09 through 2013-14
(Justices Abrahamson, Bradley, Crooks, Prosser, Roggensack, Ziegler, and Gableman)

2013-14: 2/15=13%
2012-13: 3/9=33%
2011-12: 5/15=33%
2010-11: 0/7=0%
2009-10: 1/10=10%
2008-09: 0/5=0%

2007-08
(Justices Abrahamson, Bradley, Crooks, Prosser, Roggensack, Ziegler, and Butler)

2007-08: 2/7=29%

2004-05 through 2006-07
(Justices Abrahamson, Bradley, Crooks, Prosser, Roggensack, Butler, and Wilcox)

2006-07: 5/12=42%
2005-06: 4/11=36%
2004-05: 3/11=27%

2003-04
(Justices Abrahamson, Bradley, Crooks, Prosser, Roggensack, Wilcox, and Sykes)

2003-04: 3/8=38%

1999-00 through 2002-03
(Justices Abrahamson, Bradley, Crooks, Prosser, Wilcox, Sykes, and Bablitch)

2002-03: 6/15=40%
2001-02: 4/16=25%
2000-01: 3/11=27%
1999-00: 4/12=33%

1998-99
(Justices Abrahamson, Bradley, Crooks, Prosser, Wilcox, Bablitch, and Steinmetz)

1998-99: 2/13=15%

1996-97 through 1997-98
(Justices Abrahamson, Bradley, Crooks, Wilcox, Bablitch, Steinmetz, and Geske)

1997-98: 3/7=43%
1996-97: 3/6=50%

1995-96—the year in which the database currently ends
(Justices Abrahamson, Bradley, Wilcox, Bablitch, Steinmetz, Geske, and Day)

1995-96: 3/11=27%

Information available on the Wisconsin Court System website also permits calculation of the voting records of individual justices in the 201 cases assembled here.  The results are arrayed below in descending order of support for arguments advanced by the Public Defender’s attorneys—and the contrasts are striking.  Among the Court’s current members, Justices Abrahamson and Bradley found the Public Defender’s arguments meritorious in 62% and 58% respectively of the arguments that they heard, while for Justices Roggensack, Gableman, and Ziegler, the figures were 14%, 13%, and 12% respectively.

In the ratios below, the denominator indicates the number of Public Defender arguments heard by a justice, with the differing totals among justices explained by the fact that they have served for varying numbers of years.  Only the tenures of Justices Abrahamson and Bradley have spanned the entire nineteen terms and all 201 cases.  The numerator indicates how many times a justice sided with the Public Defender.

Abrahamson 124/201=62%
Bradley 116/201=58%
Butler 22/41=54%
Geske 13/24=54%
Bablitch 39/91=43%
Day 3/11=27%
Steinmetz 10/37=27%
Sykes 16/59=27%
Crooks 47/189=25%
Wilcox 30/131=23%
Prosser 36/166=22%
Roggensack 15/108=14%
Gableman 8/61=13%
Ziegler 8/67=12%

[1] The total of 201 cases does not include fourteen per curiam decisions, and it also omits two cases in which several justices concurred with varying parts, and dissented with varying parts, of the “majority” decisions.  State v. Jerrell C.J. (2002AP3423) and State v. Stenklyft (2003AP1533-CR).

These tables are derived from information contained in 75 Wisconsin Supreme Court decisions filed between September 1, 1995, and August 31, 1996.  The total of 75 decisions does not include rulings arising from disciplinary proceedings against lawyers, which appear along with the decisions in the Supreme Court’s listing of opinions and dispositional orders for this period.

Occasionally, the Court’s listing of opinions contains separate entries for individual cases that were ultimately consolidated and resolved by a single decision.  If two or more cases were combined in this manner, the decision is counted only once for the purposes of the following tables.

The year under consideration also witnessed an unusual outcome in Estate of Cavanaugh by Cavanaugh v. Andrade.  Here, only Justices Bradley, Bablitch, and Day supported all portions of the “majority” opinion, while the other four justices dissented with regard to one portion or another.  Consequently, I will include the case only in the “Opinions Authored” table, the “Days Between Oral Argument and Opinion Filing” table, and the “Number of Oral Arguments Presented” table. 

Three additional cases—deadlocked (3-3) per curiam decisions (Ware v. Schoone; Thompson v. Jackson; and State v. Elam)—figure only in the “Number of Oral Arguments Presented” table.  All of the decisions may be found on the Wisconsin Court System website.  http://wicourts.gov/

The tables are available as a complete set and by individual topic according to the subsets listed below.

Four-to-Three Decisions
Decisions Arranged by Vote Split
Frequency of Justices in the Majority
Distribution of Opinion Authorship
Frequency of Agreement Between Pairs of Justices
Average Time Between Oral Argument and Opinions Authored by Each Justice
Number of Oral Arguments Presented by Individual Firms and Agencies