On July 13, the Supreme Court filed its last substantive decisions of the term, making it possible now to offer impressions of the court’s complete body of work for 2015-16.  Some findings provide detail regarding speculation that emerged months ago, while other information pertains to points that have received less attention.

First, it is no secret that the court has been issuing comparatively few decisions in 2016, and the data in hand make it clear how markedly the flow has ebbed this year.  By term’s end, the justices had filed only 43 decisions—less than at any other time in the quarter century currently covered by SCOWstats, and less than half the total for several of the terms included in the graph below.[1][Continue Reading…]

Teams collected points from three of the decisions released yesterday and today— Lands’ End, Inc. v. City of Dodgeville; State v. Timothy L. Finley; and Aman Singh v. Paul Kemper—resulting in a dramatic change in the standings.

The Affirmed tallied 20 points—10 from Stafford Rosenbaum (a brief, oral argument, and favorable outcome in Lands’ End) and 10 from Foley & Lardner (a brief, oral argument, and favorable outcome in Singh)—the largest gain of any team this season and enough to jump all the way from the cellar into second place.  In fact, had the State Public Defender’s Office not answered in Finley (10 points for a brief, oral argument, and favorable outcome), the Affirmed would have taken over first place.  The Citations completed the scoring—5 points from DeWitt Ross & Stevens for a brief and oral argument in Lands’ End—not enough to hold off the Affirmed, but sufficient to move past the idle Waivers into third place.

Today’s trio of decisions (Sonja Blake v. Debra Jossart; State v. Leopoldo R. Salas Gayton; and Dennis D. Dufour v. Progressive Classic Ins. Co.) brought points to four of the league’s five teams and produced multiple changes in the standings.

The Waivers made the biggest gain—10 points from von Briesen & Roper (a brief, oral argument, and favorable outcome in Dufour) and 1 point from Quarles & Brady (an amicus brief in Gayton).  With these 11 points, the Waivers moved into second place, closing the gap between them and Gavels of the State Public Defender’s Office, who collected 5 points (a brief and oral argument in Gayton).

Only the Affirmed did not participate in the scoring, and as a result they were passed by the Writs, who vaulted from the cellar by adding 7 points to their total—5 points from Legal Action of Wisconsin (a brief and oral argument in Blake v. Jossart) and 2 points from Habush Habush & Rottier (an amicus brief and oral argument in Dufour).  The Citations rounded out the scoring with 2 points from Godfrey & Kahn for an amicus brief and oral argument in Dufour—not enough, however, to maintain possession of second place, which they yielded to the surging Waivers.

“Decrying polarization is everyone’s favorite game in Washington, but in the case of the Supreme Court, it’s statistically measurable.”  So began an article in The Wire at the end of the United States Supreme Court’s 2011-12 term.  Referring to figures supplied by a pair of scholars at the University of Southern California and Washington University in Saint Louis, the author concluded that “there’s a strong case” that “the court is more divided than it has been in history.”  Other publications that summer furnished similar assessments, including an article in The Atlantic titled “The Incredible Polarization and Politicization of the Supreme Court.”  Two years later its author saw no reason to change his opinion in an essay that the New Republic ran under the title “John Robert’s Supreme Court is as Polarized as Ever.”  It seemed so as well to Adam Liptak, whose “Polarized Court” in the New York Times quoted a Boston College political scientist’s conclusion that “Polarization is higher than at any time I’ve ever seen as a citizen or studied as a student of politics.” 

Analogous claims have been made regarding Wisconsin’s supreme court, raising the question of how one might determine the degree of polarization on the bench in Madison.  A reader suggested that, in addition to measuring Wisconsin’s court against those in other states, it might be instructive to consider the United States Supreme Court as a standard of comparison—which we will do by focusing on two indicators pertinent to the “polarization” discussion: (1) the frequency with which individual justices voted in the majority in non-unanimous decisions, and (2) the percentages of unanimous and contentious decisions during a term. [Continue Reading…]

The filing of Fontana Builders, Inc. v. Assurance Company of America (June 29), David M. Marks v. Houston Casualty Company (June 30), and State v. Mastella L. Jackson (July 1) brought points to five of the league’s firms. 

The Writs made the biggest jump—eight points contributed by Michael Best & Friedrich (a brief and a favorable outcome, but no oral argument, in Marks v. Houston Casualty).  Right behind them in the week’s scoring came the Citations, with five points from Crivello Carlson (a brief and oral argument in Fontana Builders) and two points from Godfrey & Kahn (an amicus brief and oral argument in Marks v. Houston Casualty).  Had the Gavels remained idle, they would have been joined at the top of the standings by the Citations.  However, the five points gained by the State Public Defender’s Office (a brief and oral argument in State v. Jackson) maintained the Gavels’ (now smaller) lead for another week.  Rounding out the scoring, Boardman & Clark picked up one point for an amicus brief in Fontana Builders, giving the Waivers sole possession of third place.

As a result, the standings are tighter than ever, with all five teams still in with a chance as the court’s term heads into its final weeks.

The term “polarized” has hovered over the Wisconsin Supreme Court in recent years, and it continues to provoke controversy regarding its applicability to the justices in Madison.  One of the reasons for the dispute is the absence of a generally-accepted way to gauge “polarization” in this context.  After all, there will always be two or three justices who agree with each other more frequently than they do with their other colleagues when voting on contentious cases.  To what extent, then, is the resulting disagreement “normal,” and when does it reach a level of acrimony and predictability that merits the label “polarization”?

One way to assess the current court’s degree of polarization is to compare the justices’ decisions with those of justices who served on the court in earlier decades (which SCOWstats has done).  Another method—the subject of this post—employs a comparison of the Wisconsin Supreme Court with the Minnesota Supreme Court.  Of course, it would be necessary to study the supreme courts of several states before reaching a conclusion that Wisconsin’s voting pattern was normal, or polarized, or something else.  But, as a starting point, it will be interesting to see what impressions arise from some of the ways in which the two neighboring courts can be measured against each other.[Continue Reading…]

Two of the three decisions released today affected the league’s standings.  Riding the performance of Nash, Spindler, Grimstad & McCracken in John Doe 56 v. Mayo Clinic Health System – Eau Claire Clinic (a brief and a favorable outcome, but no oral argument), the Writs picked up 8 points—their first of the season.

However, the Affirmed emerged as the big winner, scoring a total of 16 points in two cases.  Conway, Olejniczak & Jerry earned 6 points in Prince Corporation v. James N. Vandenberg (a brief, an oral argument, and a decision that was partly favorable and partly unfavorable), while Axley Brynelson contributed the 10-point maximum in John Doe 56 (a brief, an oral argument, and a favorable outcome).

As a result of today’s activity, the Affirmed vaulted into contention—tied with the Waivers just one point back of the Citations and only eight points behind the league-leading Gavels.

SCOWstats has, until now, measured the Wisconsin Supreme Court’s recent activity against earlier years of the court’s work.  Other reference frames are also available, however, and today launches what I hope will be the first in a series of posts comparing the output of the Wisconsin Supreme Court with that of its counterpart in Minnesota—paying particular attention to some of the themes featured in previous posts devoted solely to Wisconsin.

I selected Minnesota because it resembles Wisconsin more closely than most other states—location, climate, economy, demographics, and so forth—while recognizing that it would likely be just as interesting to compare Wisconsin’s supreme court with that of a state that has little in common with the Midwest, especially a state where the justices are appointed rather than elected.  That will have to wait for another day, though, as Wisconsin’s western neighbor takes precedence for now over more exotic alternatives.[Continue Reading…]

Today’s decision in State v. Salinas earned the Gavels of the State Public Defender’s Office five points (for a brief and oral argument) as they try to hold off the Citations and the Waivers, their two closest challengers.

Multiple locations on the Wisconsin court system’s website introduce visitors to the moving story of Lavinia Goodell.[1]  In 1875, after she had begun practicing law in Rock County the previous year, Goodell sought permission from the Wisconsin Supreme Court to argue a case in that forum.  A unanimous three-justice panel denied her petition in an opinion written by Chief Justice Edward Ryan in 1876.  Although he deemed women fit for a variety of functions, Justice Ryan concluded that “the profession of law is surely not one of these.”  After all, he explained, “the peculiar qualities of womanhood” gave rise to a “tender susceptibility,” “emotional impulses,” and a “subordination of hard reason to sympathetic feeling,” among other traits unsuitable in the legal profession.  Instead, nature had prepared women “for the bearing and nurture of the children of our race and for the custody for the homes of the world …”  Activities contrary to the “sacred duties of their sex, as is the profession of law, are departures from the order of nature; and when voluntary, treason against it.”[Continue Reading…]