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Supreme splits deepen: Analysis of latest term reveals new lows for concurrence

By: David Ziemer, [email protected]//September 8, 2014//

Supreme splits deepen: Analysis of latest term reveals new lows for concurrence

By: David Ziemer, [email protected]//September 8, 2014//

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Staff photo by Kevin Harnack

Despite an absence of turnover on the Wisconsin Supreme Court in recent years, Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley are becoming increasingly marginalized.

According to a Wisconsin Law Journal analysis of the 61 decisions made during the court’s 2013-14 term, Bradley was in the majority in only 42 percent of the cases and Abrahamson was even lower, at 39 percent.

In contrast, each of the other five justices was in the majority in at least 82 percent of cases. Justice N. Patrick Crooks was in the majority most often, in 95 percent of cases.

In criminal cases, the difference was even greater. Abrahamson was in the majority in only 29 percent of cases, and Bradley was in the majority in only 35 percent. Crooks, and Justice Pat Roggensack, were both in the majority most often, in 97 percent of criminal cases.

In civil cases, Abrahamson and Bradley were in the majority in only half the cases, while the other five were all in the majority at least 90 percent of the time.

Abrahamson and Bradley were most frequently in dissent in the 2012-13 term as well, but the difference seen this year is nevertheless striking. Despite being the most frequent dissenter in 2012-13, Abrahamson still was in the majority in 69 percent of cases, while Bradley was in the majority in 76 percent of cases. This year’s numbers mark a 30 percent and 34 percent drop, respectively.

The court’s current composition has been together since the 2008-09 term. But in the 2007-08 term — before Justice Michael Gableman replaced Justice Louis Butler — Crooks, Abrahamson and Bradley most often were in the majority. Crooks did not dissent once during that term, and Abrahamson and Bradley both were in the majority in 87 percent of cases.

But now Crooks aligns with Abrahamson and Bradley less than half the time, according to the most recent term numbers. This past term, Crooks concurred with Bradley only in 47 percent of cases, and with Abrahamson only in 44 percent. He concurred with the remaining four justices in at least 77 percent of cases.

Instead, Justice David Prosser is now most likely to concur with Abrahamson and Bradley. He concurred with Abrahamson in 48 percent of cases, and with Bradley in 52 percent.

The combination of justices most likely to concur was Justice Annette Ziegler, with both Gableman and Roggensack, at 97 percent. Gableman and Roggensack were the next most-aligned combination of justices, at 93 percent.

Least likely to concur were Abrahamson and Ziegler, who agreed in only 30 percent of cases. The court was unanimous in 30 percent of its cases, so the two did not concur in any case that was not unanimous, a first since Wisconsin Law Journal began collecting data.

Only cases resulting in full decisions were included in the analysis; rulings on motions and dismissals were not included.

Five-to-two splits far outnumbered four-to-three splits in non-unanimous cases, with 23 compared to 16. Of those 16 cases resulting in a narrow four-to-three division, the most common alignment was a dissent consisting of Abrahamson, Bradley and Prosser, a combination that occurred eight times, six of them in criminal cases. The second most common combination was Abrahamson, Bradley and Crooks, with only three.

Who concurs with whom?

Each chart indicates the percentage of decisions where the justices concurred. Data compiled by Wisconsin Law Journal staff members.

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