2013-14 in Perspective: Part 3 (Reversals in Criminal Cases)

 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.

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 41 years.

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