I’ll conclude my series of posts on criminal cases in the Wisconsin Supreme Court last term with an assessment of the overall numbers. I identified 24 criminal cases last term that were resolved by a full-blown decision on the merits. Of those 24, 14 (or 58%) got there by way of a defendant’s petition, while only 6 got there by way of a petition from the State. So, in a sense, the “normal” criminal case in the Wisconsin Supreme Court involves a defendant who lost in both the Circuit Court and the Court of Appeals. That may help to explain some very lopsided win-loss numbers: by my count, the State prevailed 83% of the time in the Wisconsin Supreme Court.
To break this down a little more, the State won 71% of the time when it was the petitioner and 93% of the time when the defendant was the petitioner.
Another way of thinking about the data is that the Supreme Court really likes to affirm the Court of Appeals. Out of the 20 cases challenging a Court of Appeals decision, 13 (or 65%) cleanly affirmed the outcome below, if not necessarily the reasoning, while an additional two cases, bringing us up to 75%, substantially affirmed.
To focus on individual justices, it is interesting to see who is voting with the majority most frequently, which gives you a sense of where the court’s center of gravity is. And that center of gravity is Justices Ziegler and Gableman – each were on the winning side a whopping 96% of the time. Justices Roggensack and Crooks also voted with the majority more than 90% of the time, and Justice Prosser more than 80% of the time. If you put it all together, these 5 justices are voting the same way in criminal cases over 70% of the time. Chief Justice Abrahamson and Justice Bradley are the outliers: Abrahamson is with the majority only 50% of the time and Bradley only 54%. And the two of them really are soulmates, voting the same way in 23 of 24 cases.
Who votes most reliably for defendants? Abrahamson and Bradley were easily tops in this category, at 63% and 58%, respectively. Crooks and Prosser were both at 17%, the remaining three were all under 10%.
To move from the numbers to more subjective impressions, the court seems to be continuing its recent habit of playing small ball. We don’t have the blockbuster decisions, like Jerrell C.J. We tend to get a lot of case-specific factual analysis, and not a lot of bold or sweeping declarations of law. Relatedly, cases tend to be framed in terms of reviewing exercises of discretion or factual decisions by the Circuit Court, which allows the Supreme Court to fall back on principles of appellate deference and avoid reaching holdings of broad significance. The court also seems to be fond of reasonableness tests or other types of multifactor balancing tests, which also produce holdings that are very case-specific. For better or worse, we are in an age of judicial minimalism on this court.