Data from the most recent term confirm that criminal defendants face rough sledding indeed in the Wisconsin Supreme Court. As reported in the August issue of the Wisconsin Law Journal, Justices Roggensack, Gableman, Prosser, Ziegler, and Crooks essentially vote as a block in criminal cases, with each appearing in the majority at least 95 percent of the time. With very few exceptions, this block is not supporting defendants. Indeed, Gableman — elected after a notoriously ugly election battle that played on public fears of crime — went almost three years on the bench before voting for the first time to reverse a conviction at the very end of the last term.
Against a backdrop of election campaigns that focus so heavily on crime, it is hard to avoid the impression that the court is strongly predisposed for political reasons to vote against defendants. The dynamic seems quite different than on the United States Supreme Court, where even an unquestioned conservative like Justice Scalia will vote for defendants several times each term. At the federal level, only Justice Alito strikes me as equally predisposed to vote against defendants in all manner of cases as are the Wisconsin conservatives. To be sure, there are some types of cases where the U.S. Supreme Court seems to vote in an equally predictable, partisan manner as the Wisconsin Supreme Court. Fourth Amendment cases are probably the best example. But, even in that area, Scalia “switched sides” and voted with the Court’s liberals recently in at least one high-profile case, Arizona v. Gant.
The Wisconsin Supreme Court’s antidefendant block voting reflects poorly on the court’s neutrality. It would be one thing if the court’s role were merely to review routine appeals from convictions, but the court controls its own docket and is able to limit its criminal cases to those presenting difficult, important questions of law. The resolution of the tough questions that reach such a court should not break predictably in just one direction. The U.S. Supreme Court is a model. The very different voting pattern on the Wisconsin Supreme Court raises questions about whether justice really is blind in our state system.