Antonin Scalia and the Wisconsin Supreme Court

No US Supreme Court justice is more admired by American conservatives than the late Antonin Scalia—a man who President Trump assured a joint session of Congress would “forever be a symbol of American justice.”[1] Given the conservative ascendancy at the Wisconsin Supreme Court, one would expect that indications of esteem for Justice Scalia would not only be numerous, but also more frequent than those for other US Supreme Court justices. And so they’ve been—but not necessarily in a manner that many would anticipate.

US Supreme Court Justices Most Cited by the Wisconsin Supreme Court
Among the ways to gauge a justice’s appreciation by a lower court is the shorthand measure adopted by this post. We will search all of the decisions filed by the Wisconsin Supreme Court over the last two terms and count how often they cite the names of current and recent US Supreme Court justices whose service has extended into the 21st century (Justices Roberts, Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh, Stevens, O’Connor, Rehnquist, Scalia, Kennedy, and Souter).[2] Nearly always, these references identify justices who authored majority or separate opinions, articles, or books.[3]

Although one could well predict a large number of references to Scalia, the margin of his dominance may occasion surprise. As shown in Table 1, Wisconsin Supreme Court justices cited Scalia by name 121 times in 31 cases decided during the last two terms. This is three times more frequently than they cited all of the other 14 US Supreme Court justices in the table.

Wisconsin Supreme Court Justices Most Likely to Cite Scalia
It might seem reasonable to suppose that the conservative justices on the Wisconsin Supreme Court would invoke Scalia at roughly comparable rates. No doubt there would be slight differences among them, but surely the similarities would appear more striking—especially in contrast to the distaste for citing Scalia that a liberal justice must feel. However, such assumptions are wildly inaccurate for the years under consideration.

First of all, one justice, Rebecca Bradley, eclipses the rest of the field in Table 2. Her 61 citations of Scalia and 19 citations of Clarence Thomas surpass the combined total for all of the other Wisconsin Supreme Court justices.[4]

Second, while two other conservatives, Justices Ziegler and Kelly, also enlisted Scalia fairly often, how should one interpret the figures for Justices Roggensack and Gableman? They have been every bit as conservative as anyone else on the court, and yet they almost never invoked Scalia—even less often than did the court’s most liberal justice, Shirley Abrahamson. Although the disparity ought not be overstated—Justices Roggensack and Gableman nearly always voted with Justice Ziegler after all—the difference in their penchant for citing Scalia is eye-catching. If anyone can offer an explanation for this reserve on the part of Justices Roggensack and Gableman, I would be grateful.

Conclusion
While the reticence of Justices Roggensack and Gableman is noteworthy, I am more taken by Justice Rebecca Bradley’s zeal in citing Scalia far more frequently than do her colleagues. His name has turned up in her opinions with an increasing regularity since she joined the court in 2015-16, and a check of the first seven cases decided by the court during the current term found her summoning Scalia eight times. It remains to be seen whether she will sustain this average of over one citation per case, but, if she does, it will considerably exceed her rate in any of the preceding terms.

 

[1] Click here for the speech (delivered February 28, 2017).

[2] The search covers cases considered in other SCOWstats posts—that is, it excludes rulings on various motions, petitions, and disciplinary rulings.

[3] Of course, this approach omits references in SCOW opinions to SCOTUS decisions in which the SCOTUS author is unidentified. In addition, I have disregarded a few references to SCOTUS justices by name, including an instance or two when a SCOW justice mentioned that a SCOTUS justice did not address a particular issue of interest in a SCOW case. Omitted, too, are rare references that simply list how the various SCOTUS justices voted in a particular case, as in the following example: “Troxel v. Granville, 530 U.S. 57, 67-68 (2000) (O’Connor, J., Rehnquist, J., Ginsburg, J., Breyer, J.), 77-79 (Souter, J., concurring), 80 (Thomas, J., concurring), 95 (Kennedy, J., dissenting).” To be sure, then, there are gray areas in deciding which references to count, and judgments will certainly differ slightly regarding the best set of search criteria—and how to apply them in borderline instances. Thus, the numbers in the following tables should be regarded as approximations. However, I am confident that any reasonable search criteria would not invalidate the main impressions outlined in this post.

[4] The figures in Table 2 are the number of citations (or “instances,” as they are called in Table 1), not the number of cases that contained these citations. Justices Kelly and R. Bradley jointly authored a dissent that cited Scalia twice, and I credited them both for these citations. This is why the total for Scalia in Table 2 exceeds by two the total for Scalia in Table 1. I do not count SCOW justices who joined a concurrence or dissent that cites a SCOTUS justice. Only the author of the concurrence or dissent is credited (just as I credit only the author of a SCOW majority opinion that cites a SCOTUS justice).

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 50 years.

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