The Supreme Court’s 2016-17 Term: Some Initial Impressions

On July 7, the Supreme Court filed its final three substantive decisions of the term, thereby allowing us to move from speculation to more precise observations about the justices’ activities in areas that we have been tracking.

Number of decisions filed.
As the book closed last summer on the 2015-16 term, Justices Abrahamson and Ann Walsh Bradley remarked that the court had shouldered “one of the lightest (if not the lightest) case loads ever in modern times”—and, indeed, the 43 decisions filed in 2015-16 became the smallest total for any of the 32 terms currently covered by SCOWstats.[1]  From this perspective, the 51 decisions filed in 2016-17 represent a distinct rebound.[2]  However, as shown by the following graph, the increase does not challenge the conclusion that the court has been issuing far fewer decisions of late than in preceding decades, when 70-90 decisions per term were the norm.  The 51 decisions filed in 2016-17 certainly exceeded the previous term’s output, in other words, but they also amounted to the third lowest total of the entire 32-year period.

(click on the graph and tables to enlarge them)

Polarization.
In recent years, commentators have noted the polarized nature of Wisconsin’s highest court—evident in testy oral exchanges between justices and in the language bristling in some of their decisions.  If this atmosphere draws its charge from conflicts not solely of personality but of differing political persuasions and judicial philosophies, one would anticipate predictable schisms in the justices’ voting.  For instance, cases decided by 4-3 margins might serve as generators of polarized groupings of justices—“liberals” lining up routinely in the minority, perhaps, and “conservatives” in the majority.  However, this has not transpired, as it did not a year ago either, when every one of the seven 4-3 (or 3-2) decisions found a different combination of justices in the majority.  In 2016-17 there were six 4-3 decisions, only two of which had the same majority, as detailed in Table 1.  Moreover, the court’s most prominent conservative, Chief Justice Roggensack, voted just as often with the court’s two liberals (Justices Abrahamson and A.W. Bradley) as she did with her two longtime conservative colleagues, Justices Ziegler and Gableman.

Although polarization is not apparent in 4-3 decisions, it colors other vote splits vividly—in particular, 5-2 outcomes.[3]  Not only were 5-2 tallies far and away the most common result in 2016-17 (accounting for 50% of decisions by all possible vote splits), the two justices in the minority were nearly always the court’s two liberals, who were isolated in 84% of these 5-2 votes.  The same thing occurred in 2015-16, when 5-2 margins amounted to 60% of all votes (Table 2)—a substantially larger share than the average of 17% for the preceding 30 terms.[4]

With such a large portion of “contentious” decisions (defined as 5-2 and 4-3 outcomes) we would expect the share of unanimous decisions in 2015-16 and 2016-17 to be much less than the average for prior terms—as was indeed the case (Table 2).  Only 24% of decisions were unanimous in 2016-17 (and only 18% the previous term), compared to an average of 60% for the 30 preceding terms.[5]  This unusually large share of contentious decisions and small share of unanimous decisions furnish a statistical counterpart to the caustic verbal evidence of polarization among the justices. 

Fractured decisions.
A fractured decision results when a majority of justices agree on a decision’s mandate, but fewer than four justices agree on the reasoning for it.  The rationale garnering three (or potentially only two) votes is called the “lead opinion,” but it has no precedential value.  Such an outcome signals that the Supreme Court has failed to resolve an important issue, leaving the lower courts, lawyers, litigants, and (in criminal cases) law enforcement in doubt about the point of law in question.  Resolution of this problem requires that future litigants argue the issue again, and the resulting waste of taxpayer funds and litigants’ resources helps explain the concern provoked by an increase in the number of fractured decisions.

As noted in an earlier post and displayed here in Table 3, the justices began filing a significantly higher percentage of fractured decisions in 2015-16—14% of all decisions that term, well above the average of 2.3% for the period 1996-97 through 2014-15.  What, then, would 2016-17 bring?  Would the portion of fractured decisions approach 14% again or sink back toward the long-term average of 2.3%?  With the term now complete, we can state that the figure for 2016-17 not only matched but surpassed the previous year’s mark.  When the dust settled on July 7, the justices had filed eight fractured decisions in 2016-17—16% of their 51 decisions, and more than in any other term. 

Over the days and weeks to come, SCOWstats will offer more statistics and impressions of the court’s 2016-17 term.

 

[1] For the quotation, see the separate opinion authored jointly by Justices Abrahamson and Bradley in State v. Lynch.

[2] The total of 51 decisions includes the 3-3 per curiam decision in Smith v. Kleynerman.

[3] A handful of cases decided by 4-2 votes are included in this category.

[4] Five of the current justices have served together since 2008-09, when Justice Gableman joined the court, and the average for 2008-09 through 2014-15 is 30%, closer to the figures for 2015-16 and 2016-17, but still well below them.

[5] The average for 2008-09 through 2014-15 is 45%.

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 32 years.

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