Wisconsin Supreme Court output plummets

The Wisconsin Supreme Court is back in action Monday morning hearing oral arguments in yet another politically charged case that will put the high court at the center of Wisconsin politics.

This time the justices are hearing lawyers grapple over the use of unstaffed absentee ballot drop boxes — a ballot return method employed by clerks across Wisconsin during the height of the COVID-19 pandemic that was outlawed in 2022 by the then-conservative-controlled state Supreme Court.

The lawsuit is the latest in a growing list of high-profile cases taken on by the court this term that have garnered widespread public attention, including a case that resulted in new state legislative maps and another that could further shift the balance of power in the Capitol.

And while the justices have been a mainstay in headlines over the past 10 months, it’s not because they’ve taken on a flood of cases. In fact, the court will decide “stunningly unparalleled” few cases this term, according to a tally from Alan Ball, a Marquette University professor and court watcher.

Ball estimates that the court will decide just 16 cases this term, a steep drop from prior years. Last term — fall 2022 to summer 2023 — the court churned out 45 decisions. In the prior term it issued 52 decisions. (These figures do not account for various motions and petitions nor disciplinary matters involving judges and lawyers.)

Justices Rebecca Dallet, Jill Karofsky, Janet Protasiewicz, Brian Hagedorn and Rebecca Bradley all declined to comment for this story. Chief Justice Annette Ziegler and Justice Ann Walsh Bradley did not respond to requests for comment.

“(In) recent years the average has been in the upper 40s to low 50s,” Ball said in an interview. “So then to plunge all the way down — not in the 30s, not in the 20s — all the way down to the teens, is really unprecedented.”

There are several factors that could contribute to the dropping caseload, though “none of them seem like the obvious answer or the smoking gun,” Ball said.

For starters, Ball said, there has been a consistent drop in the number of petitions for review the court has been receiving each term.

Another reason is, “if you’re going by the book, the Supreme Court is supposed to confine itself to law development cases and leave error correction cases to the Court of Appeals,” Ball noted. “And so maybe (the justices) just decided that there are fewer law development cases coming along that merit their attention.”

The high-profile nature of the cases could also be contributing to the court taking fewer cases, Ball said. Litigation, like the case challenging the constitutionality of Wisconsin’s previous voting maps, is time-consuming, with the justices attaching detailed writings to orders and filing long, individual opinions.

Even still, Ball said, the court has handled laborious, contentious lawsuits in previous terms while taking dozens more cases.

“It’s hard to think that the admittedly significant decisions they’re dealing with this term are so drastically different from anything they’ve done in the past that that could explain why there would be this massive drop down to my estimate of 16,” Ball said.

Robert Yablon, a professor at the University of Wisconsin Law School and an expert on state courts, said the Wisconsin Supreme Court’s declining case count is on par with a national trend of state supreme courts and the U.S. Supreme Court deciding fewer cases.

“They are conceiving of themselves as courts that are resolving the big ticket issues, rather than doing run of the mill error correction,” Yablon said of high courts around the country.

But just because the justices are taking on a lighter caseload doesn’t mean they have a lighter workload, said Chad Oldfather, a professor at Marquette University Law School.

“One thing that’s clear is the opinions have gotten substantially longer over time,” Oldfather said.

“So I think (the justices are) putting more time into each case,” he continued, “where they don’t perceive themselves to not be working and not be busy. It’s just that they’re allocating their attention differently than they used to.”

The political nature of the relatively few cases the court has accepted this term is also noteworthy, Ball and Oldfather said, though Yablon noted that the rise of public advocacy law firms — like the conservative Wisconsin Institute for Law & Liberty and liberal Law Forward — could be contributing to more political issues landing before the court. 

Oldfather also said the political nature of the cases could be contributing to the length of opinions.

“Courts ultimately have to rely on their words and their logic to justify their decisions,” he said. “And I’m sure (the justices are) all very aware of the political nature, the political implications of these cases, and so wanting to put as much effort into explaining why they’re doing what they’re doing and portraying it as not politics … takes time and that takes a lot of research and a lot of effort.” 

What we’re watching this week

Monday

⚖️ The Wisconsin Supreme Court is hearing oral arguments in Priorities USA vs. the Wisconsin Elections Commission, a case that could reverse an earlier high court ruling banning the use of unstaffed absentee ballot drop boxes. Watch on Wisconsin Eye.

Tuesday

🗳️ The Wisconsin Elections Commission will hold a special meeting at 8 a.m. to discuss how the agency should interpret constitutional amendments approved by voters last month.

Thursday

✈️ Vice President Kamala Harris will travel to Milwaukee for her fourth visit to Wisconsin this year. The visit will be part of the VP’s “Economic Opportunity Tour.”

Should we be watching your civic engagement-related event? Let us know and we’ll consider including it in future editions of Forward. Send an email to statehouse@wisconsinwatch.org.

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Forward is a look at the week in Wisconsin government and politics from the Wisconsin Watch statehouse team.

This article first appeared on Wisconsin Watch and is republished here under a Creative Commons license.