Given the wide array of rights guaranteed by the Sixth Amendment,[1] it should occasion no surprise that defendants regularly invoke them in cases reaching the Wisconsin Supreme Court.  So far this term, the justices have two such cases pending—State v. LeMere (ineffective assistance of counsel) and State v. Lagrone (right to testify)—and they may grant additional Sixth-Amendment petitions in the months to come.

What chance do defendants have with their Sixth-Amendment arguments?  While factors such as the unique details of cases and periodic changes in the court’s composition limit the precision of predictions, a look at the court’s reaction to Sixth-Amendment arguments in recent years may help clarify the odds of success for the Sixth-Amendment appeals in LeMere and Lagrone.

We’ll begin with the most recent seven terms (2008-09 through 2014-15), a period in which the court’s composition remained unchanged, and all of the justices except for the late Justice Crooks are still on the bench.  For this period, I’ve identified 34 cases with Sixth-Amendment issues, and in only 12% of these (4/34) did a majority of justices accept the Sixth-Amendment arguments presented to them.[2]  This percentage is considerably lower than that for the preceding 13 terms (1995-96 through 2007-08), when a majority accepted Sixth-Amendment claims nearly twice as frequently—in 29% of such cases (15/51).[3]

Sixth-Amendment data also invite comparison with a recent SCOWstats post on Fourth-Amendment cases.  For one thing, although Sixth-Amendment arguments have been far from a safe bet, especially in recent years, the odds of success are not as bleak as those for Fourth-Amendment defenses, which experienced a 7% success rate for 2008-09 through 2013-14,[4] and 12% for 1995-96 through 2007-08.

Comparing the voting records of individual justices in Fourth-Amendment and Sixth-Amendment cases (Tables 1 and 2), we encounter some predictable results, but also some surprises.  Surely no court watcher would be taken aback to discover in Table 2 that Justices Abrahamson and Bradley accepted Sixth-Amendment defenses over half of the time, while Justices Roggensack, Ziegler, and Gableman extended a much chillier reception to the same claims.  The gulf between the two sets of justices is not quite as vast as the chasm evident in Table 1 for Fourth-Amendment cases, but it is still difficult to stand on one side of the Sixth-Amendment divide and see the other.

Following a recent post titled “Justice Crooks, A Swing Vote?,” there may be fewer raised eyebrows upon noticing that Justice Prosser accepted Sixth-Amendment as well as Fourth-Amendment defenses more frequently than did Justice Crooks.  The difference was greater for Fourth-Amendment arguments, but the fact that in both categories of criminal cases Justice Prosser posted the higher percentage is interesting in view of the fact that Justice Crooks was often labeled the court’s “moderate” among the rest of the current justices.

Table 1.  Percentage of Fourth-Amendment Cases in which Individual Justices Favored the Fourth-Amendment Arguments Presented to them[5]

Abrahamson   72% (58/81)
Butler                67% (8/12)
A. 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)

Table 2.  Percentage of Sixth-Amendment Cases in which Individual Justices Favored the Sixth-Amendment Arguments Presented to them

Geske                67% (6/9)
Abrahamson   61% (45/74)
A.Bradley         53% (40/76)
Bablitch            50% (14/28)
Butler                44% (7/16)
Sykes                 41% (7/17)
Steinmetz        36% (5/14)
Prosser             24% (17/72)
Crooks              21% (17/81)
Wilcox              21% (10/47)
Roggensack      11% (6/55)
Ziegler                5% (2/38)
Gableman          3% (1/32)

As for surprises, perhaps the largest comes upon spotting Justice Geske atop the Sixth-Amendment table, which indicates that she accepted 67% of these defenses, in contrast to only 20% of the Fourth-Amendment arguments that she heard.  Indeed, every one of the justices who might be regarded by today’s measure as a “moderate” or a “moderate conservative” accepted Sixth-Amendment claims more readily than Fourth-Amendment claims—and the difference was often dramatic.  In addition to Justice Geske, the most striking examples are Justice Sykes (41% Sixth Amendment, 8% Fourth Amendment); Justice Steinmetz (36% and 8%); Justice Wilcox (21% and 4%); and Justice Crooks (21% and 7%).

Meanwhile, moving in the opposite direction (though still near the top of the table), the three most liberal justices (Abrahamson, Bradley, and Butler) proved to be less receptive to Sixth-Amendment defenses than to those invoking the Fourth Amendment.  Put another way, the enormous gap between Justices Butler and Sykes in Fourth Amendment cases all but disappears in the Sixth-Amendment table.  Only for the most conservative justices, whose percentages do not range far above zero in either table, is there little change.

One current member of the court is missing.  Justice Rebecca Bradley, recently appointed to replace Justice Crooks, has yet to record a vote in any case this term, leaving it uncertain where she will reside along the voting spectrums outlined in this and other SCOWstats posts.  For now, the most that one can say regarding Sixth-Amendment cases is that she participated in two during her several months of service as an appellate court judge.[6]  In both instances—one, a per curiam decision, and the other an unpublished decision written by Judge Kitty Brennan—the court rejected the defendants’ Sixth-Amendment arguments.  Thus, as James Lagrone awaits a decision on his right-to-testify claim, he is doubtless wondering whether Justice Bradley will participate in his case, and, if so, whether her record as an appellate court judge represents a sample of sufficient size to accurately predict her vote following her move to Madison.[7]

 

[1] The Sixth Amendment (and Article 1, Section 7 of Wisconsin’s constitution) guarantee criminal defendants: (1) the right to a public trial without unnecessary delay; (2) the right to a trial by an impartial jury; (3) the right to know the nature of the charges; (4) the right to know one’s accuser and confront adverse witnesses; (5) the right to testify and to present witnesses in one’s favor; and (6) the right to a lawyer.

[2] To locate cases, I searched decisions for the words “Sixth Amendment.”  I then checked each decision in the search results to make sure that a Sixth-Amendment argument was actually advanced (as opposed to, say, a parenthetical mention of the amendment that did not pertain directly to the argument at hand).  When a case included multiple issues, I focused only on those involving the Sixth Amendment.

In rare instances, a majority opinion presented a ruling on a Sixth-Amendment argument together with other arguments, while a dissenting opinion addressed only the non-Sixth-Amendment arguments.  Here, I counted the justices in the majority as voting on the Sixth-Amendment argument but did not record the votes of the dissenting justices (rather than attempt to interpret their silence on the Sixth-Amendment issue).  In similar fashion, a small number of concurring opinions sided with the majority without addressing the Sixth-Amendment issue before the court.  When this occurred, I did not include the concurring opinion in the calculations.

If a decision concluded that the Wisconsin Constitution affords greater protection than does the Sixth Amendment to the US Constitution, I included the case.

Occasionally the court agreed that a petitioner’s Sixth-Amendment rights had been violated, but decided that the error was “harmless”—thereby declining to overturn the petitioner’s conviction.  Such outcomes are categorized here as “unfavorable” toward the Sixth-Amendment argument presented by the petitioner.

I generally excluded a small number of cases that fell into certain gray areas such as the three examples that follow.  (1) On rare occasions a decision stated that if certain “facts” were indeed true, the defendant might be able to prevail on a Sixth-Amendment claim.  However, being uncertain on this score, the court remanded the case for a more thorough assessment of the “facts” in question.  (2) In a few cases, a defendant argued ineffective assistance of counsel (a Sixth-Amendment issue), but the dispute before the court involved only the proper time or forum for such a determination, with no assessment of the validity of the argument itself.  (3) Just as infrequently, both parties briefed a Sixth-Amendment issue, but the majority opinion decided the case on other grounds.

Opinions may differ reasonably on how to handle one gray area or another, and there will always be a few cases whose specific features frustrate easy categorization, regardless of the gray-area procedure adopted.  However, the number of borderline cases is small enough that any judicious gray-area approach will have little or no effect on the percentages presented above.

All of the decisions may be found on the court system’s website.

[3] By far the most common Sixth-Amendment claim at the Supreme Court has involved the defendant’s right to a lawyer, often phrased as a contention that counsel was ineffective.  Justices sided with these arguments in 16% of such cases (3/19) in 2008-09 through 2014-15 and at nearly double that rate—31% (8/26)—in 1995-96 through 2007-08.

[4] The Fourth-Amendment post appeared in June, 2015, and therefore the Fourth-Amendment data presented here and in Table 1 do not cover the 2014-15 term.

[5] Justice Roland Day is not included in Tables 1 and 2 because the data cover only his last term on the bench (1995-96).

[6] State v. Mckee (2014AP2176-CR) and State v. Brown (2015AP522-CR)

[7] In State v. LeMere, briefing and oral argument took place before Rebecca Bradley joined the Supreme Court, and thus it seems unlikely that her voice will be heard in the decision.

In September, when the Supreme Court issued an order granting review in State v. Salinas (2013AP2686), readers who turned to the second page were likely surprised by an unusual comment added by Justice Abrahamson, who expressed apprehension over the state of affairs on two fronts: (1) the number of cases on the court’s calendar for the 2015-16 term; and (2) the percentage of these cases that presented unpublished decisions from the court of appeals.

Justice Abrahamson’s unease invites scrutiny of various sorts—one being the question of whether these developments represent departures from the court’s practice in previous terms.  Here is ground on which SCOWstats may be of service, for we can compare figures for 2015-16 with data from the previous twenty terms and determine to what extent, if any, 2015-16 marks a departure from the norm established over the last two decades.

The Supreme Court customarily holds a petitions conference once a month, as it did on October 7, where the justices decide which cases to accept for review.  Given that the next conference does not appear on their calendar until the following month, October will be our cut-off point for each of the twenty terms to be compared to 2015-16.  In other words, I will examine the cases decided in each of the previous terms and isolate just those that had been accepted for review by the end of October of the term in question.[1]  These cases can then be compared to the cases on the Supreme Court’s docket so far in 2015-16, allowing us to determine whether the current term is unusual regarding the points raised by Justice Abrahamson.

First, let’s take the matter of the number of cases in the pipeline, which prompted Justice Abrahamson to worry that “[o]ur November oral argument calendar has only one case scheduled.  The possibility exists that no cases will be ready for the December oral argument calendar.”  As shown in Table 1 the court now has 30 cases pending, at various stages on the road to a decision.[2]  This is indeed fewer than the number for any of the preceding twenty terms in the table—and well below the twenty-term average of 58 cases that had been accepted for review no later than the end of October.  For the period 2008-09 through 2014-15 (during which the same seven justices served on the court), the average was 42 cases, and it was 66 cases over the thirteen terms before that (1995-96 through 2007-08).  The 2012-13 term, when only 31 cases were pending by the end of October, is the closest match in this regard to 2015-16.  As it turned out, when the 2012-13 term came to an end, the justices had decided only 46 cases, the lowest total in the twenty-year period.[3]  Next summer, it will be interesting to see how the final total for 2015-16 compares.

 

Justice Abrahamson also voiced misgivings over the acceptance for review of unpublished court of appeals decisions.  She felt that they represented far too large a share of the cases on the court’s calendar, and she seemed especially troubled by what she regarded as an excessively high number of per curiam decisions from the court of appeals.  One can infer that she deems at least some of these cases as undeserving of review, for she made a point of quoting from the “Wisconsin Court of Appeals Internal Operating Procedures” to observe that per curiam decisions “do not involve ‘new or unsettled questions of general importance.’”

So, how does 2015-16 compare with previous terms regarding per curiam decisions from the court of appeals?  Table 2 indicates that, through the end of October, per curiam decisions represented a larger share (27%) of the cases on the court’s calendar in 2015-16 than for any individual term in the preceding twenty years.  Viewing these twenty years as a whole, we find that per curiam decisions accounted on average for only 9% of the cases on the court’s docket by the end of October.  For the earliest thirteen years under consideration (1995-96 through 2007-08), the average was slightly lower—7.7% of cases had been per curiam decisions at the court of appeals—before climbing to 12.5% during the period 2008-09 through 2014-15.[4]

 

(Click here for a table that contains several additional columns, including one showing the percentage of cases accounted for by published decisions from the court of appeals—only 33% of all cases accepted for review in 2015-16, compared to an average of 51% of cases accepted for review during the preceding twenty terms.)

To be sure, questions remain that elude statistical resolution.   For instance, opinions will vary over the extent to which one should be disturbed by the unusually small number of petitions granted and the substantial percentage of court of appeals per curiam decisions on the Supreme Court’s docket.  One might also wonder why these differences with past averages are occurring in 2015-16.  At the end of her comment on the order granting review in Salinas (itself a per curiam decision from the court of appeals), Justice Abrahamson suggested indirectly, by means of a quotation from Michael Heffernan’s Appellate Practice and Procedure in Wisconsin, that the Supreme Court, after rejecting too many worthy cases in previous months, might now be scrambling to bulk up its undernourished calendar with cases that do not always warrant such attention.  Whatever the merits of this explanation, however, it leaves open the question of why so few petitions for review were granted in the months prior to September.  This, after all, is what led to the shortage that now worries Justice Abrahamson.

Perhaps the meager harvest derives from recent turmoil on the court, though there may well be other plausible explanations.  I would be grateful to benefit from knowledgeable readers who can speculate on reasons for the small number of cases, the large share of per curiam decisions—and how much cause for concern exists on either of these counts.

[1] This information is available on the court system’s website.

[2] This includes cases awaiting decision, awaiting oral argument, or still in the briefing stage.  There is a slight chance that no decision will be issued for one or another of these cases during the 2015-16 term, but this possibility is sufficiently remote (especially for multiple cases) that it does not imperil the general findings that follow.

[3] Data for 2012-13 is available on SCOWstats.

[4] The averages are weighted in order to account for the varying number of cases on the court’s calendar from one year to the next.

“Supreme Court Justice Patrick Crooks retiring, taking swing vote with him.”  So announced the headline of a post on Madison.com today, reporting on Justice Crooks’s statement that he would not seek re-election.  The headline’s wording doubtless occasioned little surprise, as Justice Crooks, more than any other member of the court, has long been accompanied by such labels as “swing vote,” “centrist,” and “moderate conservative”—suggesting that his voting record places him between a liberal minority (Justices Abrahamson and Bradley) and a conservative majority of Justices Prosser, Roggensack, Ziegler, and Gableman.[1]

There is indeed evidence to support labeling Justice Crooks—rather than Justice Prosser, say—as the court’s “moderate,” “centrist,” or “swing vote.”  He, and not Justice Prosser, has sided with Justices Abrahamson and Bradley in some politically-charged cases—notably his dissent in Milwaukee Branch of NAACP v. Walker (in which he argued that Wisconsin’s voter ID law is unconstitutional) and his dissent in the recent John Doe case.

In addition to his opinions in these rare high-profile cases, Justice Crooks’s overall voting record finds him joining the liberals somewhat more frequently than does Justice Prosser.  Table 1 (covering the seven terms in which the current seven justices have served together) indicates how often both Justice Abrahamson and Justice Bradley voted with Justice Crooks, and how often these two liberals voted with Justice Prosser.  Computing the totals for all seven terms, we find Justice Crooks on the same side as the two liberals in 62% of the votes in which all three participated (243/390), surpassing the figure of 53% for Justice Prosser (195/366).[2]

However, one can also make a case that it is misleading to distinguish so sharply between Justice Crooks as the court’s apparent “moderate” or “swing vote” and Justice Prosser as a member of the court’s conservative bloc.  To be sure, there is a conservative bloc (as indicated in Table 2, which shows that Justices Roggensack, Ziegler, and Gableman have voted together in fully 90 percent of the court’s cases over the past seven terms.  Moreover, after adding up the figures for the seven terms, one finds that Justice Prosser voted with this conservative trio 80% of the time (285/357).  The problem for someone trying to distinguish Justice Crooks from Justice Prosser on this score is that Justice Crooks voted with the same trio every bit as often—82% of the time (310/380).[3]  Thus, for all types of cases taken together, Justice Crooks joined the court’s three most conservative members just as frequently as did Justice Prosser.

As noted above regarding the general set of all cases, Justice Crooks has sided more often with the liberals than has Justice Prosser.  And, as detailed in previous SCOWstats posts, he has joined the liberals more often than has Justice Prosser in certain subsets of cases (involving insurance companies, for example).  But SCOWstats has also examined other categories of cases (most recently, Fourth Amendment arguments) in which Justice Prosser voted with the liberals more often than did Justice Crooks.

Further complicating the discussion is the label “swing vote”—frequently applied to Justice Crooks and rarely to Justice Prosser.[4]  The term might suit Justice Crooks if one understands the phrase to mean simply that he spreads his votes somewhat more broadly and frequently along the ideological spectrum than does Justice Prosser.  I suspect, though, that for most people the term “swing vote” suggests a justice who casts a vote that tips the balance one way or the other in close decisions.  And by this measure, Justice Crooks seems less obviously the best candidate for the label.

Consider Table 3.  It shows how often over the past seven terms each of the two justices voted in the majority in 4-3 decisions when the other justice did not.  Note that Justice Prosser appeared in this role 24 times, surpassing Justice Crooks’s total of 19, indicating that Justice Prosser’s vote was more often crucial in 4-3 decisions than was Justice Crooks’s.

If participation in 4-3 majorities is a reasonable way to determine whether the term “swing vote” better suits Justice Crooks or Justice Prosser, perhaps the most that can be said in favor of Justice Crooks meriting the “title” is that his majority votes were more evenly divided between the liberal and conservative blocs, as shown in Tables 4a and 4b.[5]

Thus, with some exertion and selective emphasis, a case can be made for Justice Crooks as a “swing vote” of sorts, but the distinction often drawn between Justice Crooks and Justice Prosser on this point seems less persuasive than the familiar label suggests.

 

[1] For a sampling of references to Justice Crooks as a “centrist” between the conservatives and liberals on the court, see Milwaukee Magazine, WisconsinWatch.org, and the Milwaukee Journal Sentinel.

[2] To be clear, the figures in the table indicate only how often all three justices in the trio voted together.  They were usually joined by other justices as well.  Occasionally, one justice in the trio did not participate in a case.  In these infrequent instances, if the remaining two justices voted the same way, that case is not included in the calculations.  If the remaining two justices disagreed, the case is counted as one in which the trio did not side with each other.  Per curiam cases are included.

[3] The figures in Table 2 were calculated according to rules similar to those outlined in the reference note for Table 1.

[4] For references to Justice Crooks as a “swing vote,” see (in addition to the Madison.com article cited above) the Milwaukee Journal Sentinel, Justice Crooks’s own Wikipedia article, Wisconsin Public Radio, and FOX11 News.

[5] Justice Prosser’s total of 23 majority votes without Justice Crooks (adding the totals in Tables 4a and 4b) is one short of his total in Table 3 because in one case (Bethke, 2012-13) the majority consisted of Justices Bradley, Prosser, Roggensack, and Ziegler—that is, only one of the liberals and only two of the conservatives.  Thus Bethke does not figure in Tables 4a or 4b.

These tables are derived from information contained in 70 Wisconsin Supreme Court decisions filed between September 1, 1993, and August 31, 1994.  The total of 70 decisions does not include rulings arising from such undertakings as (1) disciplinary proceedings against lawyers and (2) various motions and petitions.  Nor does it include Hoskins v. United States Fire Insurance Company, in which a per curiam decision dismissed review as improvidently granted.

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.

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

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).