Strange Bedfellows in 4-3 Decisions at the Wisconsin Supreme Court

A few weeks ago, Justices Abrahamson, Ann Walsh Bradley, Roggensack, and Gableman combined to form a majority in Universal Processing Services v. Circuit Court of Milwaukee County.  Shortly thereafter, a Wisconsin attorney noticed a query on a practice-group listserv that asked whether this unusual majority had ever coalesced before in a 4-3 decision.  She forwarded the question to SCOWstats, and I am grateful for the opportunity to respond.

Surveying the period from 2008-09 (when Justice Gableman joined the court) to the present, we find that Universal Processing Services is indeed the only 4-3 decision to unite Justices Abrahamson, A.W. Bradley, Roggensack, and Gableman.  In this sense the decision is unique, although it is not extraordinary to discover a quartet of justices assembling once—and only once—in a 4-3 decision.  After omitting Justices Kelly and Rebecca Bradley—who have been on the court for such brief periods that all 4-3 majorities involving them have been new—there remain four other 4-3 decisions with unique majorities: (1) Abrahamson, Crooks, Prosser, Ziegler; (2) Bradley, Prosser, Roggensack, Ziegler; (3) Abrahamson, Crooks, Prosser, Gableman; and (4) Abrahamson, Bradley, Prosser, Gableman.[1]  Table 1 furnishes a term-by-term breakdown of all 4-3 majorities (including those with Justices Kelly and R.G. Bradley) from 2008-09 through mid-April of 2017.[2]

(click on tables to enlarge them)

The diverse combinations of justices catch the eye in Table 1, but so does the fact that certain justices materialized much more frequently than others in 4-3 majorities.  Once Justice Gableman replaced Justice Butler in 2008-09 and tilted voting in favor of his fellow conservatives, Justices Roggensack, Ziegler, and Gableman became the court’s dominant voices in 4-3 outcomes.  This is evident not only in Table 1 but also in Table 2, which displays how often each justice participated in 4-3 majorities.[3]  The troika of Justices Roggensack, Ziegler, and Gableman appeared in 60% of these majorities—far more regularly than any trio of other justices: Abrahamson, Bradley, Crooks (25%); Abrahamson, Bradley, Prosser (19%); Abrahamson, Crooks, Prosser (17%); and Bradley, Crooks, Prosser (13%).

Table 3 and Table 4, which cover the years of Justice Butler’s service on the court (2004-05 through 2007-08), illustrate the change that ensued after Justice Gableman supplanted Justice Butler.[4]  During the “Butler years,” for instance, Justice Abrahamson appeared in 59% of 4-3 majorities, compared to only 37% of these majorities thereafter.  For Justice Bradley, the gap was even larger—62% in the “Butler years,” falling to 35% during the “Gableman years.”  Just as rapidly as these two liberals departed 4-3 majorities, Justice Roggensack’s presence became routine.  After prevailing in only 43% of 4-3 outcomes during the “Butler years,” her share soared to 72% following the arrival of Justice Gableman.

More surprising, perhaps, are the shifting fortunes of Justices Crooks and Prosser.  During the “Butler years” it proved nearly impossible to assemble a 4-3 majority without Justice Crooks, who participated in 87% of them.  With the arrival of Justice Gableman, however, the court’s balance altered to an extent that left Justice Crooks a good deal less essential to these majorities, and his share dropped to 53%.  As Justice Crooks’s role diminished, Justice Prosser stepped forward to join 61% of 4-3 majorities, well above his portion of 43% in the “Butler years.”  It is also interesting to note (from Table 1) that during the “Gableman years” Justices Crooks and Prosser voted together in only 17% of 4-3 majorities—a figure not strikingly larger than the 13% posted together by Justices Abrahamson and Gableman, a considerably more unlikely pair (it would seem) than Justices Crooks and Prosser.

Although one should not exaggerate the strip of common ground between Justice Gableman and the court’s two liberals, careful readers of Table 1 and Table 4 may notice that Justice Gableman has been three times as likely as Justice Ziegler to join Justices Abrahamson and A.W. Bradley in 4-3 majorities.  The difference between the rates at which Justice Ziegler and Justice Gableman joined Justice Abrahamson in these majorities—4% for Justice Ziegler,[5] compared to 13% for Justice Gableman—may not be eye-popping, but it is not trivial and provides a range against which the votes of the court’s newest pair of justices can be compared in years to come.

 

[1] In the order listed above, the four cases are: Pries v. McMillon (2009-10); Bethke v. Auto-Owners Insurance Company (2012-13); Legue v. City of Racine (2013-14); and Coyne v. Walker (2015-16).

[2] Table 1 does not include a trio of 3-2 decisions with the following majorities (all from 2015-16): Prosser, Roggensack, and Gableman; Abrahamson, A.W. Bradley, and Prosser; and Roggensack, Ziegler, and Gableman.  In the table, “Bradley” refers to Justice Ann Walsh Bradley.  Justice Rebecca Bradley, who appears much less frequently, is listed as “R.G. Bradley.”  She replaced the late Justice Crooks in 2015-16, and Justice Kelly replaced Justice Prosser in 2016-17.

[3] Table 2 does not include Justices R.G. Bradley and Kelly.  Nor does it include the three 3-2 decisions from 2015-16.

[4] Justice Wilcox served through 2006-07; Justice Ziegler replaced him in 2007-08.  Table 3 does not include Justices R.G. Bradley and Kelly.  Nor does it include the three 3-2 decisions from 2015-16.

[5] The figures for Justice Ziegler include data from 2007-08 (Table 4)—her first term on the court—a year before the arrival of Justice Gableman.  Justice A.W. Bradley appeared with Justice Gableman in 12% of 4-3 majorities, but in only 4% of such majorities did she join Justice Ziegler.

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 three decades.

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