The Wisconsin Supreme Court’s Plummeting Productivity

The Wisconsin Supreme Court is on track to decide fewer cases this term than any other year in over a century.

By the end of its current term this summer, the state high court will have filed only 16 decisions, according to my latest estimate. Although the number of decisions has been declining for decades — hovering around 90 early this century and down to around 50 in recent years — the total of 16 for 2023–24 is nevertheless astonishing. It is a miniscule yield compared to past decades.

The obvious question, then, is: What accounts for such a meager output in this term?

According to the court’s website, the number of petitions for review has been dropping of late — 658 petitions in 2020–21, 624 in 2021–22, and 573 in 2022–23 — with 332 listed in the court’s records through March of this term (suggesting that the total by late summer might conceivably reach 500).

The justices have clearly decided that fewer of this smaller pool of petitions merit acceptance. The court is generally supposed to confine itself to “law development” cases, leaving “error correction” cases to the court of appeals. So the justices may simply have concluded that fewer “law development” cases have come their way this term. 

I suspect there’s more to it, though exact causes are difficult to pin down.

If asked, the justices might say the court has devoted a great deal of time to prominent cases that could reshape government in Wisconsin — including Clarke v. Wisconsin Elections Commission, about the constitutionality of noncontiguous electoral maps; Evers v. Marklein, about separation of powers; and Priorities USA v. Wisconsin Election Commission, about whether state law bars the use of absentee ballots and drop boxes. The court is also trying to decide whether to consider other major cases, including two abortion cases, Kaul v. Urmanski and Planned Parenthood v. Urmanski, on an expedited basis. This has doubtless absorbed much of the justices’ attention. 

That said, the court — including these justices — has handled similarly weighty cases in the past without such a sharp drop in opinions. For instance, in 2013–14, the court decided 62 cases, despite having both Madison Teachers Inc. v. Walker and League of Women Voters of Wisconsin v. Walker — which altered public employee labor laws and required voter ID, respectively — on the docket that year. More recently, flurries of litigation concerning Covid-19 mitigation measures and the presidential election of 2020 did not diminish the justices’ output to anything approaching this year’s level, despite demanding a substantial effort from the court. In short, other factors beyond controversial cases must have contributed to the dearth of decisions.

It’s possible that when the court flipped to a liberal majority with a conservative chief justice last year, internal friction so intensified that it bogged down the court in ways that reduced output. That tension burst into view at the very start of the court’s term last August as the liberals — “four rogue members of the court,” in the opinion of Chief Justice Annette Ziegler — implemented major procedural and personnel changes against the passionate objection of the conservative minority. Such public animosity among the justices has encouraged speculation that discord contributed to delays in drafting opinions. 

But extreme acrimony on the bench has not prevented the justices in years past from filing much larger numbers of decisions. In 2015, for example, conservatives ousted liberal Chief Justice Shirley Abrahamson following the passage of a constitutional amendment changing the requirement that the most senior justice be the court’s chief. That term, the court issued 54 opinions. Perhaps the current rancor can be distinguished from past disharmony, but it’s difficult to conclude without clearer evidence that discord accounts entirely for this term’s trickle of decisions.

Finally, it is unlikely that the low number of decisions this term is related to the liberals securing control of the court. Only three votes are required to grant a petition for review, so the three conservatives could accept more cases if they desired. And one might even have predicted (incorrectly, as it turned out) that the new liberal quartet would take more cases now that they finally have an opportunity to develop the law in directions of their choosing.

Does this year’s low output foreshadow a longer period of inactivity for the court? What we are witnessing is so unusual that it gives pause to predictions for next term. The impending retirement of Justice Ann Walsh Bradley, one of the four liberals, further complicates conjecture about the court’s orientation and chemistry down the road. My best guess is that this year’s meager 16 decisions are something of an aberration rather than the new normal.

Alan Ball is a history professor at Marquette University. His long-term project monitoring and analyzing the Wisconsin Supreme Court has been widely cited, including by the court.