2013-14 in Perspective: Part 2 (4-3 Majorities)

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.

 

About Alan Ball

Alan Ball is a Professor of History at Marquette University in Milwaukee, WI.

alan.ball@marquette.edu

SCOWstats offers numerical analysis of the voting by Wisconsin Supreme Court justices on diverse issues over the past 47 years.

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