As the NCAA basketball tournament reaches its climax, we match its allure by studying the court performance (or presence, at any rate) of universities in a different setting.  Exploiting data churned up by earlier posts, we will compare the number of oral arguments presented by graduates of law schools that qualified for the competition.  Our gaze encompasses the past six terms (2008-9 through 2013-14), during which 795 oral arguments were delivered before the Supreme Court.  In only seven instances was I unable to determine the participants’ law schools, leaving us with 788 entries in the tournament.  In a very small number of cases two lawyers split an oral argument, and when this occurred, each lawyer’s law school was counted in the total of 788.  Also, if one lawyer delivered multiple oral arguments over the years in question, his/her law school was credited separately for each of these arguments.

Number of Oral Arguments Presented at the Wisconsin Supreme Court by Graduates of the Following Law Schools, 2008-9 through 2013-14 (includes schools whose graduates delivered at least eight oral arguments—1% of the total of 788)

University of Wisconsin 367/788 (47%)
Marquette University 182/788 (23%)
Harvard University 16/788 (2%)
New York University 12/788 (2%)
University of Chicago 11/788 (1%)
Drake University 11/788 (1%)
University of Missouri 11/788 (1%)
Indiana University 10/788 (1%)
University of Pennsylvania 10/788 (1%)
University of Minnesota 9/788 (1%)
Northwestern University 9/788 (1%)
University of Virginia 9/788 (1%)
John Marshall Law School 8/788 (1%)
Yale University 8/788 (1%)

The previous post (“Law Firm Success Rates”) focused on just the twelve private firms that presented at least five oral arguments during this period.  Listed below are the law schools whose graduates delivered the oral arguments for these firms.  Here we are counting all oral arguments, including those in a handful of cases that were omitted from the previous post (3-3 per curiam decisions, for instance, and decisions that did not clearly favor one party or the other).

The twelve firms are: Axley Brynelson; Cannon & Dunphy; Crivello Carlson; Foley & Lardner; Godfrey & Kahn; Habush Habush & Rottier; Kasdorf, Lewis & Swietlik; Michael Best & Friedrich; Quarles & Brady; Stafford Rosenbaum; von Briesen & Roper; and Whyte Hirschboeck Dudek.

Number of Oral Arguments Presented on Behalf of the Twelve Firms by Graduates of the Following Law Schools

Wisconsin 58/121 (48%)
Marquette 27/121 (22%)
Harvard 6/121 (5%)
Chicago 4/121 (3%)
NYU 4/121 (3%)
Indiana 3/121 (2%)
Iowa 3/121 (2%)
Northwestern 3/121 (2%)
Ohio State 3/121 (2%)
Yale 3/121 (2%)
Columbia 1/121 (1%)
Georgetown 1/121 (1%)
John Marshall 1/121 (1%)
Minnesota 1/121 (1%)
Northern Illinois 1/121 (1%)
Virginia 1/121 (1%)
Wayne State 1/121 (1%)

It is interesting to note that while Wisconsin’s and Marquette’s shares of the oral arguments for these twelve firms are nearly identical to their shares for the total number of 788 oral arguments, their oral arguments were distributed unevenly across the twelve firms, as detailed in the following table.

Number of Oral Arguments Presented on Behalf of Each of the Twelve Firms by Graduates of the Following Law Schools

Axley Brynelson: Wisconsin 10/12; Marquette 2/12.
Cannon & Dunphy: Marquette 5/7; Wisconsin 2/7.
Crivello Carlson: Wisconsin 3/5; John Marshall 1/5; Marquette 1/5.
Foley & Lardner: Wisconsin 5/13; Chicago 4/13; Yale 3/13; Indiana 1/13.
Godfrey & Kahn: Wisconsin 8/15; Northwestern 3/15; NYU 2/15; Columbia 1/15; Georgetown 1/15.
Habush Habush & Rottier: Marquette 5/8; Wisconsin 3/8.
Kasdorf, Lewis & Swietlik: Marquette 5/6; Wisconsin 1/6.
Michael Best & Friedrich: Wisconsin 8/14; NYU 2/14; Harvard 1/14; Northern Illinois 1/14; Iowa 1/14; Virginia 1/14.
Quarles & Brady: Wisconsin 5/14; Harvard 3/14; Marquette 2/14; Ohio State 2/14; Iowa 1/14; Minnesota 1/14.
Stafford Rosenbaum: Wisconsin 4/6; Harvard 2/6.
von Briesen & Roper: Wisconsin 5/11; Marquette 4/11; Iowa 1/11; Wayne State 1/11.
Whyte Hirschboeck Dudek: Wisconsin 4/10; Marquette 3/10; Indiana 2/10; Ohio State 1/10.

Although these twelve firms appeared frequently before the Supreme Court, the total of their appearances paled before the number of lawyers bound for the same destination from the offices of the Attorney General and the Public Defender.  Focusing on the data from these two agencies, one is struck by the fact that lawyers from the University of Wisconsin presented oral arguments in numbers far surpassing their colleagues from other schools—and considerably higher than Wisconsin’s share (47%) of the 788 oral arguments delivered by attorneys in all categories.  Wisconsin’s dominance was particularly striking in the case of the Public Defender, where the law school’s graduates accounted for a remarkable 71% of oral arguments—eclipsing the portions contributed by lawyers from the law schools of the University of Virginia (11%), Marquette (5%), and New York University (5%).

Number of Oral Arguments Presented on Behalf of the Attorney General’s Office by Graduates of the Following Law Schools (schools whose graduates delivered at least two oral arguments—1% of the total of 175)

University of Wisconsin 96/175 (55%)
Marquette University 29/175 (17%)
University of Missouri 11/175 (6%)
University of Pennsylvania 10/175 (6%)
University of Chicago 5/175 (3%)
Indiana University 4/175 (2%)
Capital University 3/175 (2%)
University of Iowa 3/175 (2%)
University of Michigan 3/175 (2%)
DePaul University 2/175 (1%)
Harvard University 2/175 (1%)
Northern Illinois University 2/175 (1%)

Number of Oral Arguments Presented on Behalf of the Public Defender’s Office by Graduates of the Following Law Schools

University of Wisconsin 45/63 (71%)
University of Virginia 7/63 (11%)
Marquette University 3/63 (5%)
New York University 3/63 (5%)
University of the Pacific 2/63 (3%)
Georgetown University 1/63 (2%)
Golden Gate University 1/63 (2%)
University of Minnesota 1/63 (2%)

 

Inspired by the NCAA basketball tournament, this post stages a competition among law firms whose members have argued cases before the Supreme Court over the past six terms (2008-09 through 2013-14).  The selection committee ruled that eligibility for the competition required a firm’s participation in at least five oral arguments—excluding a handful of cases that resulted either in 3-3 per curiam outcomes or decisions that did not clearly favor one side or the other.[1] 

To be sure, partisans of individual firms might insist that the results be viewed with various considerations in mind.  Thus an argument could be made that pro bono cases—often involving criminal issues with a comparatively low chance of a successful outcome—should not be allowed to affect a firm’s record.  For instance, two of the cases in Quarles & Brady’s collection of 12 are of this sort, and if they had been omitted, the firm’s success rate would have jumped from 50% to 60%.  Others might contend that personal-injury firms—paid only if they win—are more likely to limit their appearances in the Supreme Court to cases in which they anticipate a favorable result.  This seems plausible and might suggest that personal-injury firms ought to be grouped apart from the rest.  However, such a conclusion would also suggest that the success rate of personal-injury firms should exceed that of the remainder of the field, which proved not to be the case.  As a result, all firms are competing in a single division.

The first table details each firm’s results individually.  Here, for example, one finds that Michael Best & Friedrich prevailed in 31% (4 out of 13) of the cases in which it presented oral arguments, while Foley & Lardner secured a favorable result in 56% (5 out of 9).

Law Firms Participating in Five or More Oral Arguments from 2008-9 through 2013-14

Law Firm	% of Successful Outcomes[2]
Axley Brynelson	7/12=58%
Cannon and Dunphy	4/7=57%
Crivello Carlson	4/5=80%
Foley & Lardner	5/9=56%
Godfrey & Kahn	11/14=79%
Habush Habush & Rottier	4/7=57%
Kasdorf, Lewis & Swietlik	3/5=60%
Michael Best & Friedrich	4/13=31%
Quarles & Brady	6/12=50%
Stafford Rosenbaum	4/6=67%
von Briesen & Roper	3/10=30%
Whyte Hirschboeck Dudek	3/10=30%

The second table focuses on the outcomes of the subset of cases in which the 12 firms delivered oral arguments against each other.

Law Firm	Wins and Losses (opponents in parentheses)
Axley Brynelson	one loss (Godfrey)
Cannon and Dunphy	one loss (Foley)
Crivello Carlson	No oral arguments against other firms in the field
Foley & Lardner	one loss (Habush) and one win (Cannon & Dunphy)
Godfrey & Kahn	one loss (Habush) and one win (Cannon & Dunphy)
Habush Habush & Rottier	two losses (Kasdorf and Whyte) and one win (Foley)
Kasdorf, Lewis & Swietlik	one win (Habush)
Michael Best & Friedrich	one loss (Stafford Rosenbaum)
Quarles & Brady	one loss (Stafford Rosenbaum)
Stafford Rosenbaum	two wins (Michael Best and Quarles)
von Briesen & Roper	one loss (Godfrey) and one win (Whyte)
Whyte Hirschboeck Dudek	one loss (von Briesen) and one win (Habush)

[1] When a firm prevailed on certain issues but not others, the case is counted here if it seems clear that the firm won or lost on the issues of greatest importance—a subjective call required in only a small number of cases.

[2] In addition to four 3-3 per curiam decisions, the following cases are excluded from consideration.  Bostco LLC v. Milwaukee Metro. Sewerage District; Northern Air Services v. Link; and Notz v. Everett Smith Group, Ltd.—all Foley & Lardner cases in which the outcome was not overwhelmingly favorable or unfavorable for Foley’s clients—and Marlowe v. IDS Property Casualty Insurance Co., in which the decision was unfavorable for the individual insurance company, IDS (a victory for Habush), but also satisfactory for the insurance industry in general, represented by Godfrey in an amicus brief.

I am always grateful to receive ideas for new topics, and one such suggestion pertained to the voting of the Supreme Court’s current members in insurance cases.  More specifically, two questions are posed here.  How frequently did individual justices vote in favor of insurance companies, and how frequently did pairs of justices vote together in these cases?  It seems to me that something can be done with this as long as we can formulate a reasonably clear and plausible category of cases to consider.  To this end I have tried to set fairly strict criteria that limit our set of cases to those that center on interpretations of (1) insurance policies or (2) statutes that the justices seek to apply to insurance companies. 

This approach excludes cases in which insurance companies are listed among the parties but do not figure in the discussion of issues on which a decision turns.  If, for instance, the Court determines that a person or company acted negligently, one can often conclude from the specifics of the case that an insurance company will ultimately have to pay some or all of the damages.  This might amount to an “insurance case” under an expansive definition of the term, but not necessarily for us.  If a decision hinges on a defendant’s negligence or the applicability of a certain statute, while ignoring the insurance company and the obligations and exclusions in its policy, that case is not included here.  This screening method has yielded 34 cases from the six terms (2008/9 through 2013/14) during which the Court’s current members have served together, and these cases are listed individually under the title “Decisions by Vote Split in Insurance Cases.”

Votes Favoring Insurance Companies
For the 34 insurance cases described above, the Court issued sixteen decisions that were favorable to insurance companies and eighteen decisions that were not.  As displayed below, the Court’s two most liberal justices, Abrahamson and Bradley, very rarely accepted the contentions of insurance companies—15% and 12% of the time, respectively.  In contrast, the three most conservative justices—Roggensack, Ziegler, and Gableman—found the insurance companies’ arguments persuasive in a majority of cases.  Justice Gableman stood out in this regard, siding with insurance companies 65% of the time.

	Number of votes favoring insurance companies	Percentage of all votes cast by each justice
Abrahamson	5	5/34=15%
Bradley	4	4/34=12%
Crooks	14	14/34=41%
Prosser	15	15/31=48%
Roggensack	18	18/34=53%
Ziegler	19	19/34=56%
Gableman	22	22/34=65%

Levels of Disagreement Among Justices
As detailed in the tables grouped under the title “Agreement Among Pairs of Justices in Insurance Cases,” certain pairs of justices voted together in nearly all insurance cases, while other pairs found a good deal less common ground.  At one end of the agreement spectrum, Justices Abrahamson and Bradley voted together 97% of the time (and 95% of the time in non-unanimous decisions), as did Justices Roggensack and Ziegler.  At the other end of the spectrum, disagreement was nearly as striking.  Justice Abrahamson voted with Justice Ziegler in only 10% of non-unanimous decisions, for instance, which also proved to be the share of cases in which Justices Bradley and Gableman sided together.  Indeed, the voting disagreement between the two most liberal justices and their three most conservative colleagues has been slightly greater in insurance cases than it has been in cases of all types—civil and criminal taken together—as evident in the group of tables titled “Agreement Between ‘Liberal’ and ‘Conservative’ Justices.”

 For a complete set of tables—those mentioned in this post and several others pertaining to insurance cases—click here.

These tables are derived from information contained in 83 Wisconsin Supreme Court decisions filed between September 1, 1996, and August 31, 1997.  The total of 83 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 judges and lawyers; and (2) orders pertaining to motions for reconsideration.

Two additional cases—deadlocked (3-3) per curiam decisions (DeRuyter v. Wisconsin Electric Power Co. and State v. Wisconsin Central Transportation Corp.)—figure only in the “Number of Oral Arguments Presented” table.

Occasionally, the Court’s listing of opinions and dispositional orders 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.  All of the decisions may be found on the Wisconsin Court System website. http://wicourts.gov

The tables are available as a compete 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

 

 

Perhaps the most notable feature of the Wisconsin Supreme Court’s recent decision in State v. Ramon G. Gonzalez (2012AP1818-CR, filed on December 3, 2014) was the separate opinion authored by Chief Justice Abrahamson.  Although labeled a concurrence, it resembled a dissent—not with regard to the decision in Gonzalez, which did not figure in her discussion, but with regard to the Court’s new procedure for opinion preparation and mandate.  Adopted in the fall of 2014 by a deeply divided court, the new rules are designed to accelerate the release of decisions.  To this end, the four justices (Crooks, Roggensack, Ziegler, and Gableman) who voted to adopt the rules over the objections of their three colleagues placed specific limits on the number of days for writing, circulating, and revising opinions.  Chief Justice Abrahamson’s concurrence served as a public opportunity to express misgivings over the new rules.  While acknowledging that “timely release of our opinions after oral argument is important for the litigants, for the bench and bar, for the public, and for this court,” she cautioned that “we should not, however, sacrifice thoughtful discussion and careful collegial review of draft opinions just for the sake of speed.”  She seemed especially troubled that the new time restrictions “are unwelcoming to concurrences and dissents.”

This post presents information on the relationship between the time taken to file decisions and the number of concurring and dissenting opinions included in these decisions.  As noted in previous posts, the number of days between oral argument and decision filing has increased over the past 17 years (the period currently covered by SCOWstats data), while the number of decisions filed has diminished considerably over the same interval.  (See Graphs 1 and 2.)  Clearly, more time is being taken to file fewer decisions, and it seems plausible to hypothesize that a principal reason is the larger share of contentious decisions in recent years (see “2013-14 in Perspective: Part 1”).  Pursuing this line of conjecture, one may speculate reasonably that a larger proportion of contentious decisions corresponds with a larger number of concurring and dissenting opinions—and that the number of concurring and dissenting opinions correlates with the increasing amount of time taken to file decisions.

Before presenting statistics, it may be helpful to explain that the figure of interest here is the average number of concurring and dissenting opinions per decision.  A simple calculation of the number of concurring and dissenting opinions each term would be less revealing, because some years yielded a large number of concurring and dissenting opinions mainly because a large number of cases were decided.  In such instances, the average number of concurring and dissenting opinions per decision could well be low, as evident in Table 1.

Proceeding, then, with the average number of concurring and dissenting opinions per decision, the correlation with the number of days taken to filing decisions is quite strong, as demonstrated in Graph 3—which encourages the plausible surmise that a larger number of concurring/dissenting opinions per decision contributes to a larger number of days required to file a decision.

At any rate, the four conservative justices who adopted the Court’s new procedures appear to have reached this conclusion, for their rules address concurring and dissenting opinions at length and direct at these opinions an explicit statement of blame for delays in filing decisions.  With this in mind, it should occasion no surprise to learn that the Court’s two liberal members (Justices Abrahamson and Bradley) have written the largest number of concurrences and dissents.  In fact, as shown in Table 2, Justices Abrahamson and Bradley authored more concurrences and dissents—both in 2013-14 and over the entire six terms in which the seven current justices have served together—than did the other five justices collectively.  Justice Abrahamson contributed far more of these opinions than any of her colleagues, including an output in 2013-14 that was 50 percent higher than the total written by all four of the justices who approved the new rules on concurrences/dissents.  Thus there can be little doubt regarding the primary target of these rules—nor any surprise over Justice Abrahamson’s disquiet.

Views will differ regarding the new limits adopted by the conservative justices.  Should the procedures be interpreted as a laudable effort to increase the Court’s efficiency or as an attempt by those in the majority to minimize opinions at variance with their own?  It may even be possible for some observers to embrace both interpretations.  In any case, if the new rules are enforced in their current form, they will indeed reduce the number of days between oral argument and opinion filing.  And if a correlation persists between this reduction and a smaller number of concurrences and dissents per decision, it can be illustrated beyond a doubt by the end of the term.  Less agreement will be likely as to whether such an impact on concurrences and dissents should be applauded.

These tables are derived from information contained in 72 Wisconsin Supreme Court decisions filed between September 1, 1997, and August 31, 1998.  The total of 72 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 judges and lawyers; and (2) orders pertaining to motions for reconsideration and rulings by the Board of Bar Examiners.

Occasionally, the Court’s listing of opinions and dispositional orders 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.

In addition to the 72 decisions noted above, three other cases figure in some of the following tables.  One of these is a deadlocked (3-3) per curiam decision (Moulas v. PBC Productions) that appears only in the “Number of Oral Arguments Presented” table—which is also the only table to include State v. Castillo, in which the Court decided that the petition for review had been improvidently granted.

Finally, in State v. Chrysler Outboard Corporation only Justices Crooks, Wilcox, and Steinmetz 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.  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

 

 A previous comment (“Reversals in Criminal Cases,” posted September 1, 2014) presented data on two categories of Supreme Court reversals of rulings from the court of appeals: reversals of rulings that had favored defendants, and reversals of rulings that had favored the state.[1]  The September 1 post noted, among other things, that the Court’s current members—all in place beginning with the 2008-09 term when Justice Gableman replaced Justice Butler—reversed 80% (20/25) of rulings that had favored defendants and 12% (8/68) of rulings that had favored the state during the five terms from 2008-09 through 2012-13.

With information now available for 2013-14, comparisons are possible with the preceding five terms, as well as with earlier terms when different arrays of justices occupied the bench.  In 2013-14 the Court accepted eleven cases in which the court of appeals had ruled in favor of the defendant—and reversed in nine of them, a reversal rate of 82%.  In contrast, when defendants petitioned for review, the Court ruled in favor of the state thirteen out of fourteen times, a reversal rate of 7%.

Voting by Individual Justices
As one would anticipate, based on the Court’s record in recent years, Justices Roggensack, Ziegler, and Gableman accepted the state’s arguments with near unanimity, while Justices Abrahamson and Bradley were most likely to respond critically.  Thus, when asked by a defendant to reverse a lower-court ruling that had favored the state, Justices Roggensack, Ziegler, and Gableman voted to do so 7%, 0%, and 0% of the time, respectively—in contrast to Justices Abrahamson (93%) and Bradley (71%).  When the state sought a reversal, Justices Roggensack, Ziegler, and Gableman obliged much more readily (91%, 100%, and 91%, respectively) than did Justices Abrahamson and Bradley (both 27%).  (Table 1 provides data for all seven justices over the 2013-14 term.)

The Current Court in Perspective
While the gap between the reversal rates was very large (82% favoring the state and 7% favoring defendants) in 2013-14, it did not greatly exceed the gap generated by the Court’s current members over the preceding five terms (80% and 12%).  However, there remains the question of whether this performance differs significantly from that of the Court in previous years, when other combinations of justices were casting votes.  For instance, the four terms from 2004-05 through 2007-08, when Justice Butler served on the Court, are commonly regarded as a “liberal” interval in the Court’s history, and data now available on SCOWstats allow us to compare these “Butler years,” and also the six terms prior to Justice Butler’s arrival (1998-99 through 2003-04), with the record established by the Court’s present membership.  (See Table 2.)

A number of points are striking here.  First, while the “Butler years” may have been “liberal” in some respects (see, for example, the post titled “2013-14 in Perspective: Part 2”), the Court during these four terms reversed decisions that had favored defendants at almost exactly the same (very high) rate as have the Court’s current members—and at a marginally higher rate (79% compared to 76%) than in the six terms prior to Justice Butler’s tenure on the Court.

The most dramatic difference between the Court’s current lineup and those on the bench for varying stretches before 2008-09 is to be found in the reversal rates of lower-court decisions that had favored the state.  During the “Butler years” the Court reversed in 33% of such cases, and during the six terms before Justice Butler joined the Court the justices did so in 29% of their decisions.  In contrast, the 2013-14 Court reversed in only 7% of these cases—and only 11% of the time for the entire period from 2008-09 through 2013-14.  It will be interesting to see, as this study is expanded further back into the Court’s history, at what point we encounter another extended period during which the state, appearing as the respondent in criminal cases, received such a sympathetic hearing from the justices.

[1] See the footnotes for the September 1, 2014, post for more information on the types of cases considered here.

Shifting 4-3 Majorities

The one-vote margins in 4-3 decisions make them a sensitive indicator of change in the influence of individual justices and in the dominance of certain blocs of justices over the years.  This post offers some findings on how frequently justices voted in the majority in these decisions in 2013-14 compared to the previous five terms (during which the Court’s current members have served together)—and also compared to the ten terms before that.

For most justices, their shares of majority votes in 4-3 decisions occasioned little surprise in 2013-14 compared to patterns evident from the preceding five terms.  Justice Abrahamson, for instance, voted in the majority 31% of the time in 4-3 decisions during the 2013-14 term, which is not far removed from her 33% portion of majority votes in these decisions during the five terms from 2008-09 through 2012-13.  In similar fashion, the 2013-14 percentages hover very close to the percentages for the preceding five terms for all of the other justices—except for Justices Crooks and Prosser, where the change was dramatic.  More specifically, Justice Crooks voted with the majority 81% of the time in 4-3 decisions during the 2013-14 term, but only 39% of the time during the preceding five terms.  For Justice Prosser the change was striking in the other direction—38% in 2013-14 compared to 75% during the five preceding terms.  Perhaps figures for 2014-15 will suggest whether this reversal in 2013-14 amounted to simply an incidental blip, evident occasionally in any justice’s voting record, or an initial indication of a more sustained alteration in voting patterns. 

Overall, despite the anomaly of voting by Justices Crooks and Prosser in 2013-14, the information in the accompanying table suggests continuity on this issue over the six terms during which the Court has maintained its present composition.  However, the table also underscores the conspicuous change that occurred once Justice Gableman replaced Justice Butler, thereby giving the Court the membership that it has maintained ever since.  During the “Butler years” (2004-05 through 2007-08), each of the six justices who are still on the Court today voted in the majority as follows in 4-3 decisions:

Abrahamson—37/63=59%
Bradley—39/63=62%
Crooks—55/63=87%
Prosser—27/63=43%
Roggensack—27/63=43%
Ziegler (only one term)—7/14=50%

At no point thereafter would the figures for Justices Abrahamson and Bradley approach their percentages (59% and 62% respectively) for the “Butler years”—percentages that plunged to 33% and 31% respectively for the six terms following Justice Butler’s departure.  Justice Crooks also experienced a sharp drop in the majority from the “Butler years” compared to the past six terms (87% down to 52%).  Meanwhile, the figures for Justices Prosser, Roggensack, and Ziegler moved just as abruptly in the opposite direction.  Joined in 2008-09 by Justice Gableman, Justices Roggensack and Ziegler voted in the majority over 70% of the time in 4-3 decisions, and the same could have been said for Justice Prosser, were it not for his change of course in 2013-14, noted above (which brought his total for the past six terms down to 63%, still far above his 43% for the “Butler years”).

Nearly as vivid is the contrast between the “Butler years” and the preceding six terms.  Four of the Court’s current justices (Abrahamson, Bradley, Crooks, and Prosser) were on the Court at this time (1998-99 through 2003-04), and they all found themselves casting majority votes at much different frequencies than would be the case during the “Butler years.” 

	1998-99 through 2003-04	the “Butler years”
Abrahamson	36%	59%
Bradley	37%	62%
Crooks	66%	87%
Prosser	75%	43%

Thus for the sixteen terms covered by the table, the “Butler years” represented a high-point for Justices Abrahamson, Bradley, and Crooks with regard to the calculations performed here.  During neither the six terms before, nor the six terms after the “Butler years” would they constitute part of the majority in 4-3 decisions at anything close to the rates that prevailed during Justice Butler’s tenure on the Court.  As for Justice Prosser, the “Butler years” amounted to just as striking an interval—though, in his case, a low point—with regard to majority votes in these cases. 

It will be interesting to see if any of these impressions are altered as the range of years is expanded—not only by adding data for 2014-15 and beyond, but also by gazing farther back into the past.

 

Information now available for the Court’s 2013-14 term has invited the question of whether the Court’s performance in 2013-14 represented a departure from the recent past.  Responses to this question often serve as the means by which commentators proceed to conclude that the Court is, or is not, more “polarized.”  Not surprisingly, opinions on this score depend in part on the category of data chosen for examination and the significance attributed to it as a key to understanding the Court’s behavior.  Thus a recent post from Foley and Lardner posed the question in its headline—“A Divided Court?”—and answered “no,” while a Wisconsin Law Journal article appeared under the following headline: “Supreme splits deepen: Analysis of latest term reveals new lows for concurrence.”[1]

Differing views on this question depend not just on the pieces of data selected for emphasis but also on the period of time chosen as a standard of comparison.  For instance, 5-2 votes accounted for 20% of all decisions in 2012-13 and then soared to 36% of all decisions in 2013-14.  This is a large increase by any reckoning, but it seems less dramatic when one discovers that 5-2 votes accounted for 32% of all decisions in 2011-12 and 40% in 2010-11.  It may be worthwhile then to offer a broader historical perspective and some additional information for those engaged in analyzing the Court’s recent activity.

The Court’s votes during the 2013-14 term were distributed as follows.[2]
7-0 decisions—30%
6-1 decisions—8%
5-2 decisions—36%
4-3 decisions—26%

If we include the 2013-14 term with the preceding 15 (that is, 1998-99 through 2013-14), we find the following averages for the 16 terms, along with the standard deviations.[3]
7-0 decisions—51%, standard deviation: 10.5%
6-1 decisions—10%, standard deviation: 4.2%
5-2 decisions—23%, standard deviation: 8.0%
4-3 decisions—17%, standard deviation: 5.5%

A number of things catch the eye.  The 2013-14 term’s figure for 6-1 decisions (8%) is very close to the average for the 16 terms (10%).  But such is far from the case for the other three vote categories, most notably for unanimous decisions, where the 2013-14 figure of 30% was two full standard deviations below the 16-term average of 51%.  For 5-2 decisions, the 2013-14 figure (36%) was well above the 16-term average of 23%—1.6 standard deviations above—which was also the margin by which the percentage of 4-3 decisions in 2013-14 exceeded the 16-term average.

It may also be instructive to compare the figures for 2013-14 with averages for the six terms during which the Court’s current members have occupied the bench (2008-09 through 2013-14).  The six-term averages are as follows (to aid comparison, figures for just the 2013-14 term are included in parentheses).
7-0 decisions—43%; standard deviation—8.4%.  (for 2013-14 alone, 30% of the term’s decisions were 7-0)
6-1 decisions—12%; standard deviation—4.0%.  (for 2013-14 alone, 8% of the term’s decisions were 6-1)
5-2 decisions—30%; standard deviation—7.5%.  (for 2013-14 alone, 36% of the term’s decisions were 5-2)
4-3 decisions—16%; standard deviation—6.2%.  (for 2013-14 alone, 26% of the term’s decisions were 4-3)

These figures encourage the question of how broadly 2013-14 marked a departure for the Court, even when the comparison is restricted to only the period of its current membership.  Certainly the change is evident with regard to the category of data under consideration here—most vividly for 7-0 and 4-3 decisions, where the figures for 2013-14 were much lower than the 6-term average for 7-0 decisions and much higher for 4-3 decisions (a gap of slightly more than one and a half standard deviations in each instance).

Conclusion
No doubt opinions will vary as to whether this information is germane to the question of a “polarized” Court, in large part because the term “polarized” can be defined in diverse ways—as can the term “contentious.”  Suppose, for purposes of discussion, that “contentious” cases are understood to mean cases with either two or three dissents (in a court with seven justices).  The 16 terms under consideration here averaged 40% “contentious” and 60% “uncontentious” cases per term, slightly more than two full standard deviations removed from the figures for 2013-14: 62% “contentious” and 38% “uncontentious.”  If some other definition of “contentious” cases seems more compelling, perhaps the complete set of data in the accompanying table will assist in determining whether this understanding of the term aptly characterizes recent practice in the Wisconsin Supreme Court.

In any event, the Court’s 2013-14 term witnessed some notable changes, even when the comparison is restricted to the last six terms, to say nothing of the lengthier period also considered here.  Thus, a year from now, it will be interesting see if corresponding data for the 2014-15 term will join that of 2013-14 in a journey away from the longer-term average, or whether the 2014-15 term will amount to a zig countering the zag in 2013-14.

[1] http://www.wiappellatelaw.com/2014/09/18/wisconsin-supreme-court-2013-2014-term-summary-part-2-a-bitterly-divided-court/ (accessed October 5, 2014)
http://wislawjournal.com/2014/09/08/supreme-splits%e2%80%85deepen-analysis-of-latest-term-reveals-new-lows-for-concurrence/ (accessed October 5, 2014)

[2] Here, and elsewhere in this post, the term “7-0 decisions” includes a small number of unanimous decisions with different vote counts (generally 6-0).  In similar fashion, “6-1 decisions” include a handful of 5-1 votes; “5-2 decisions” a few 4-2 votes; and “4-3 decisions” a very small number of 3-2 votes.

[3] The term “standard deviation” indicates that approximately 68% of the data are included within one standard deviation on either side of the average, and roughly 95% of all data are included within two standard deviations on either side of the average.  Taking 7-0 decisions as an example, consider the information supplied above—an average of 51% of all decisions per term were 7-0 decisions, with a standard deviation of 10.5%.  Possessing this information, we know that in roughly 68% of the Court’s sixteen terms, 7-0 decisions represented between 40.5% (51% minus 10.5%) and 61.5% (51% plus 10.5%) of all decisions.  And in roughly 95% of the sixteen terms, 7-0 decisions ranged between 30% (51% minus 21%—that is, minus two standard deviations) and 72% (51% plus 21%—that is, plus two standard deviations) of all decisions.  A glance at the accompanying table indicates that these approximations are reasonable.  The 1998-99 term registered the highest percentage of 7-0 decisions at 71%, while the 2013-14 term produced the lowest percentage of such decisions at 30%. 

These tables are derived from information contained in 61 Wisconsin Supreme Court decisions filed between September 1, 2013, and August 31, 2014.  The total of 61 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; (2) orders pertaining to editorial revisions of previous decisions, motions for reconsideration, and rulings by the Board of Bar Examiners; and (3) a decision that review of a ruling by the court of appeals had been improvidently granted.

In addition to the 61 decisions noted above, a deadlocked (3-3) per curiam decision was filed: State Farm Fire & Casualty Co. v. Hague Quality Water, International.  This is included 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