Wisconsin Supreme Court sees low output
Professor: Term on track for only 16 decisions
MADISON – The state Supreme Court is on track to file the lowest number of decisions during its current term compared to any other in the 20th or 21st centuries, according to a recent analysis from Marquette University.
The estimated total of 16 is “stunningly unparalleled,” history professor Alan Ball wrote in an annual prediction on his SCOWstats blog.
This is the fifth term for which Ball has made predictions on court output.
“During the previous four terms, when the court filed far more decisions (from the mid-40s to the low-50s per term), the predictions were within a few cases of the actual totals. Given that the current term is delivering such a small number of decisions, we’re dealing with a smaller number of variables, and I think that the predicted total of 16 will be almost exactly spot-on,” Ball told the Milwaukee Journal Sentinel.
It would be the first time the court has issued fewer than 40 decisions in a term in at least four decades.
According to Ball’s analysis, the court filed more than 130 decisions in its 1980-81 term and has generally fluctuated between 40 and 100 per term in subsequent years. Before the late 1970s and the creation of the court of appeals, the state Supreme Court often filed more than 200 decisions per term and sometimes more than 300.
Ball does not include cases dismissed as improvidently granted (that is, the court determines it should not have accepted the case and does not issue a decision). He also omits rulings on motions and disciplinary matters involving lawyers or judges.
“But views could reasonably differ over deadlocked (3-3) per curiam decisions (where one justice does not participate, and the remaining six justices split evenly and cannot reach a decision),” he said. “There are never more than a few such cases, but when the total for the term is as small as it will be this year, such ‘gray-area’ cases make more of a difference.”
In this term’s estimate, Ball includes the two 3-3 cases (so far).
What factors might be at play in this term’s low expected output?
● The number of petitions for review has dropped significantly. The court received 658 petitions in its 2020-21 term, 624 in 2021-22 and 573
in 2022-23. According to a March 2024 report from the court, 332 petitions have been filed in the current term.
● “In addition to a smaller number of petitions for review, the justices have clearly decided that fewer of the petitions merit acceptance. Why that might be is harder to say,” Ball said. “The Supreme Court is generally supposed to confine itself to ‘law development’ cases (while leaving ‘error correction’ cases to the court of appeals), and it’s possible that the justices have concluded that fewer ‘error correction’ cases have come their way this term.”
● The court has spent a significant amount of time on major cases that could reshape state government, Ball noted — on issues including redistricting, separation of powers and election administration. It’s also still considering whether to grant original action and bypass petitions in other high-profile cases, including a challenge to the state’s 1849 abortion ban and an effort to determine a constitutional right to abortion.”Even with all that, however, it remains true that the court has handled major cases in previous terms without such a drastic impact on the total number of decisions filed,” Ball added.