Our last update covered a court divided between liberals and conservatives, with Justice Hagedorn as the swing vote. Since then, following the election of Justice Protasiewicz, three years of liberal control have ensued, providing an opportunity to investigate this new era’s impact on public defenders.
Given that the court has decided an unusually small number of cases during the last three terms, we’ll combine data from all three years for the types of appeals handled by public defenders: (1) criminal cases (those whose numbers end with the CR suffix), (2) cases presenting collateral attacks on criminal convictions, and (3) other cases (whose numbers do not end with the CR suffix) contesting involuntary commitments, forcible medication, or termination of parental rights. We can then compare the results with findings from earlier three-term segments when control shifted (or balanced) among various groups of justices.
Public defender dominance
Before turning our attention to outcomes, it’s important to note that attorneys from other firms also take these cases. Indeed, not long ago—during the interval 2008-09 through 2010-11—they accounted for 67% of supreme court litigation in such matters. Thereafter, though, the public defenders’ share began to increase. Within a decade it passed 50%, as shown in Table 1, and reached 68% by the three terms under our scrutiny. It will be interesting to see if this public defender ascendance persists during what promises to be an extended period of liberal hegemony.
Outcomes
One could anticipate that the “liberal” court of 2023-24 through 2025-26 would be more receptive to the arguments of defendants[1] in these cases than was the court of 2020-21 through 2022-23 when liberals and conservatives were more evenly balanced. But such was not the case, as demonstrated in Table 2.
This fits the analysis of a previous post (“How Liberal is the Supreme Court?”) which found the current justices to be predictably “liberal” on a variety of issues—such as election procedures, abortion, and medical negligence—but much more resistant to defendants’ arguments in criminal cases than one might foretell at a court dominated by liberals.
Today, we can explore the matter beyond cases with CR suffixes, because our collection of decisions includes other cases in which people were involuntarily committed, forcibly medicated, or, less often, deprived of parental rights. In other words, we’ll compare the “liberal” court’s rulings in these non-criminal cases—nearly all[2] argued by public defenders—with the decisions in such litigation filed by prior sets of justices.
Table 3 provides three lines of information. The first pertains to the three years of liberal control, the second to three years of approximate balance between liberals and conservatives, and the third to 12 years of conservative control.
Here, as with criminal cases, the liberal court proved less sympathetic than its immediate predecessor to arguments from people seeking to avoid involuntary commitments, forcible medication, or termination of parental rights. In fact, even during the long era of conservative sway such litigants faced almost exactly the same odds as they have during the past three terms.[3]
These findings do not lend themselves readily to a “liberal” classification of today’s court, however accurate the label remains on other issues. To be sure, the number of cases is still so small that a confident conclusion on this score would be premature. But with the court now firmly in liberal hands for years to come, we will soon discover if an expanding sample size of judicial decisions leaves an impression resembling that described above.
[1] Here, the term defendant refers not just to people whose case numbers ended with the CR suffix but also to those involuntarily committed, forcibly medicated, or deprived of parental rights whose case numbers did not include the CR suffix.
[2] Public defenders argued 35 of the 40 such cases decided by the court from 2008-09 through 2025-26.
[3] Click here for a table showing how frequently individual justices cast votes favorable to clients in these cases.
