1990-91 and 2015-16: Some Contrasts

Much has changed at the Wisconsin Supreme Court over the past 25 years, including all but one of the justices.[1]  A pair of recent posts provided data regarding the supreme court’s activity at each end of this quarter century—1990-91 and 2015-16—which now furnish us an opportunity to compare these two terms with a focus on topics that have figured prominently in SCOWstats.

Number and Speed of Decisions
In certain respects, a comparison of the beginning and end of this 25-year interval accentuates trends already apparent for several years—developments such as the growing period of time required to generate a shrinking number of decisions.  Thus the 83 decisions filed in 1990-91 nearly doubled the total of 43 filed in 2015-16, yet the average period between oral argument and the filing of a decision was roughly a month and a half shorter in 1990-91 than in 2015-16 (91 days and 136 days respectively).

Polarization
The court also appeared far less polarized at the beginning of this period, when fully two-thirds of its decisions were unanimous, and only 17% were contentious.  By 2015-16 these figures were essentially reversed, with only 18% of decisions unanimous and 78% contentious, as detailed in Table 1
.[2]

(click on tables to enlarge them)

Table 1--vote splits--1990-91 compared to 2015-16

Separate Opinions
We’ve noted as well the outsized number of separate opinions in 2015-16, when the total of only 41 decisions[3] bulged with 68 concurring and dissenting opinions—an average of 1.66 separate opinions per decision.  This amounts to three times the average for 1990-91, a term whose 83 decisions included only 45 concurrences and dissents.  Moreover, we’ve seen that even unanimous decisions in 2015-16 were likely to contain concurrences, which was not at all the case 25 years earlier.  More specifically, only 14% of unanimous decisions emerged from the court without concurrences in 2015-16, compared to 84% in 1990-91.

Women’s Share of Oral Arguments
Recalling a post this
spring on the number of women delivering oral arguments at the supreme court, we would anticipate that women presented a much larger share of these arguments in 2015-16 than in 1990-91.  Such was indeed the case among oral advocates from the Attorney General’s Office, whose female attorneys accounted for 54% of the Office’s oral arguments in 2015-16, more than double their share (23%) in 1990-91.  The increase was even more conspicuous at the Office of the Public Defender, where women came to dominate the field—giving three-fourths of the agency’s oral arguments in 2015-16, towering above their 29% share in 1990-91.

These results, while significant, may not seem surprising.  After all, given the dramatic increase in the number of women attending law school over the past half century, one would expect to see a growing share of oral arguments handled by female attorneys—not just from the public sector but from private law firms as well.  Indeed, the earlier post found that while women participated far less frequently than men in oral arguments involving private-sector lawyers, the women’s share did increase (slowly) to 16% of these oral arguments by 2014-15.  One might thus predict that their portion would expand slightly in 2015-16—or at least not shrink appreciably—but the final column in Table 2 reveals a large decline (to 9%).  Not only did this represent a regression from the previous term, it was less even than the figure for 1990-91, when women presented 15% of the oral arguments from attorneys in the private sector.[4]

Table 2--women's share of oral arguments--1990-91 compared to 2015-16

It will be interesting to see in years to come if this falloff in 2015-16 was an aberration, quickly reversed.  For the time being, though, the contrast is vivid between the ballooning share of oral arguments conducted by women in the public-sector and the apparent stagnation in this regard common among private firms and sole practitioners.

 

[1] The court’s members in 1990-91 were Justices Abrahamson, Bablitch, Steinmetz, Day, Heffernan, Ceci, and Callow.  In 2015-16: Justices Abrahamson, Ann Walsh Bradley, Prosser, Roggensack, Ziegler, Gableman, and Rebecca Bradley.

[2] Contentious decisions are those in the 5-2 and 4-3 columns.  Due to rounding, the percentages for 2015-16 do not add up to 100.

[3] This total excludes two per curiam rulings.

[4] The “private sector” category excludes not only the Attorney General’s Office and the Office of the Public Defender but also local government entities (the offices of city and county attorneys, for example) as well as public-interest organizations such as the Frank J. Remington Center of UW-Madison and Legal Action of Wisconsin.  Lawyers from the Attorney General’s Office and the Office of the Public Defender appear before the supreme court much more frequently than do lawyers from local-government offices and public-interest organizations.

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 45 years.

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