Some Thoughts on the Supreme Court’s 2016-17 Docket

Early in the 2015-16 term, Justice Abrahamson expressed concern over two aspects of the court’s docket: (1) the meager number of cases scheduled, and (2) the large percentage of these cases that had arrived as per curiam decisions from the court of appeals.  Per curiam decisions “do not involve ‘new or unsettled questions of general importance,’” she wrote, citing the “Wisconsin Court of Appeals Internal Operating Procedures,” and she wondered if the supreme court was relying too heavily on these comparatively insignificant decisions to repopulate its docket.

Number of cases accepted for review

Prompted by such misgivings, a SCOWstats investigation compared the court’s docket at the end of October 2015 with the dockets at the same juncture in each of the preceding 20 terms (1995-96 through 2014-15).  The findings showed that the court had indeed accepted fewer cases through October 2015 than it had during the same period in any of the previous years.  As it turned out, this drought in the autumn of 2015 foreshadowed an output at the end of the term (August 2016) that amounted to fewer decisions filed than in any other term in the entire 25 years covered by SCOWstats.  Thus, a look at the justices’ docket through October of the current term allows us to compare it with the court’s work over the past two decades—and, when supplemented by data from November, December, and January, will furnish an accurate indication of what to anticipate at the end of the term this summer.

Table 1 demonstrates that the justices have been trying to enlarge the docket in 2016-17.  The total of 48 cases accepted through October 2016 is 60% higher than the figure for the previous year and well above those for the three most recent years before that.  One has to go back to 2011-12 and 2010-11 to find years with similar numbers of cases pending by the end of October.  It so happened that in both 2011-12 and 2010-11 the justices filed 61 decisions by term’s end,[1] which suggests something in this neighborhood as a preliminary estimate of the total to be filed in 2016-17.  Although a total of 61 decisions does not approach the average of 85 per term for the first dozen years of the period, it would greatly exceed the 43 decisions filed in 2015-16.

We can refine our estimate by incorporating data from November and December of 2016 and January 2017.  During these three months, the court decided five cases and accepted 12 more for review, with the result that 55 cases remained before the justices in various stages of review by the beginning of February.  Of these 55 ongoing cases, 8 had petitions for review granted as recently as the interval between January 9 and January 20, 2017, and it is less than certain that all 8 of these cases will be decided by the end of the term.  In 2015-16, for instance, petitions for review were granted in five cases during January 2016, and decisions were filed in only two of them by term’s end.[2]  Assuming that the justices work more rapidly in 2017 and decide all 8 of the January cases (as well as every case accepted earlier), they will reach a total of 60 decisions for the 2016-17 term.  But they can only surpass that total if they decide additional cases in lightning fashion after granting review in February.

Per curiam decisions from the court of appeals

Whatever the exact number of decisions filed in 2016-17, it should mollify those troubled by the drop in the court’s output in 2015-16.  At the same time, though, data from the current term will displease observers concerned about the mounting percentage of per curiam decisions accepted from the court of appeals.  Of the 60 cases before the court (or already decided) by the beginning of this month, 28% (17/60) came from the court of appeals as per curiam decisions.  At this point in the calendar no doubt can remain that of all the cases ultimately decided by the end of the term, a portion very close to 28% will have reached the supreme court as per curiam decisions, topping the 23% share in 2015-16.  The percentages for both of these terms far outstrip those from any of the preceding 20 years, as evident in Table 2, which displays data through October of each term.

Conclusion

One might highlight the question of a relationship between the two developments described above—the justices’ apparent goal of increasing the number of cases that they decide and the rising tide of per curiam decisions lapping at their feet.  More specifically, are per curiam decisions selected knowingly as a ready means to augment the docket—and, if so, is this done reluctantly (perhaps because the court of appeals is not supplying a sufficient number of more suitable decisions), or are per curiam decisions accepted matter-of-factly, without the apprehension voiced by Justice Abrahamson?  From this vantage point, it is impossible to determine the other justices’ thinking on the question, but the issue certainly looms over data of the sort presented above.

 

[1] The totals for 2011-12 and 2010-11 include deadlocked (3-3) per curiam decisions.

[2] Another case (Seifert v. Balink) had been accepted for review back in November 2015 but was not decided until the 2016-17 term.

About Alan Ball

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

alan.ball@marquette.edu

SCOWstats offers numerical descriptions of the voting by Wisconsin Supreme Court justices on diverse issues over the past 35 years.

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