He believes the answer is not really, and his evidence for this position is that the number of petitions for review of Court of Appeals decisions has dropped by about thirty percent since 2000. He acknowledges that several explanations for this drop are possible, but says the “precipitous” drop in the last several years “lends credence to the possibility, as former Justice William Bablitch hypothesized in an interview with me earlier this year, ‘that the acrimony on the court’” is to blame. According to Nichols, “This was not the attitude ten years ago.”
Actually, as Justice Bablitch ought to know, the acrimony on the court was just this bad (and just as public) ten years ago.
As I have noted before on this Blog, in the Chief Justice’s 1999 reelection campaign, three sitting justices endorsed her opponent, as did the spouse of a fourth justice. Two justices considered resigning, and the Chief Justice threatened to force a constitutional show-down to vindicate her interpretation of the powers of her office. Then-Dean Eisenberg and future dean Kearney provide a very good overview of the “heightening hostility on the court” during that period in this Marquette Law Review article. In short, tensions were just as high on the court in 2000 as they are today, so the decreasing number of petitions for review from 2000 to today should not be taken as proof for Justice Bablitch’s thesis.
Additionally, we should recall that approximately half of all petitions for review are filed in criminal cases. I cannot go back on the court’s website before the 2006-07 term to see how this number has changed since 2000, but I would guess that criminal defense lawyers recognize that the court’s current majority is not favorably disposed to the creative or aggressive interpretations that have held sway in the past, and thus they may not seek review of Court of Appeals determinations as often.
Nichols’ next point is that the court is deciding fewer cases – 98 this term (including lawyer discipline cases), compared to 158 in 2005. “This court is among the least productive in decades.” What is not clear is that this is at all a bad thing – in fact, it may be a very good thing. If a majority of the court is interested in making social policy for the entire state of Wisconsin, then it needs to take a lot of cases to issue its edicts to govern various areas of life. If, on the other hand, the majority of the court is composed of humble jurists who have a different view of the judicial role, then they may take a lot fewer cases because they are not looking for opportunities to make law. This has been an oft-noted analysis of Chief Justice Roberts on the U.S. Supreme Court – see, e.g., TIME (“This trend — a steady shrinking of the judicial role in public policy and a handing over of issues to the states — is consistent with Roberts’ conservative philosophy.” and “His speeches on the judicial role suggest a man more interested in the steady retreat of the court from public policy . . . .”) and the Wall Street Journal (“the advent of the Roberts Court may mark a diminished role for a federal judiciary, whether adjudicating society’s most divisive issues or overseeing the everyday machinery of government.”).
Plus, just as the conservatives may not vote to grant review in a lot of cases because they do not want to use cases to make policy, so too the liberals will not vote to grant review in a lot of cases because they know that the court’s majority is currently held by their ideological foes (as opposed to the Justice Butler days, when the liberals wanted to grant a lot of petitions for review so they could decide a lot of issues).
Moreover, the court spends a lot of time currently in open administrative conference engaged in rule-making. Previously much of this work was delegated to the Judicial Council and the court’s commissioners, but more recently the heavy lifting has been done by the court itself. The justices only have so many hours in a day, and more and more of them are being taken up with rule-making.
Next, Nichols’ criticizes the court’s work product, both its timeliness and quality. He states that the court’s members have been “pulling the equivalent of a judicial all-nighter,” and attorneys agree that they “could write much better opinions.” I’d be interested to see if Nichols or his anonymous attorney sources have any specific examples of badly written or reasoned opinions. If some of the opinions are badly written, that is likely an issue that pre-dates the arrival of the court’s newer members. Earlier this month, Nichols praised Justice Gableman for writing “the sort of cogent, straightforward opinion he is starting to become known for.”
As for the timeliness of the opinions, criticism should start with the person in charge of the Court’s calendar – the Chief Justice. This may be a flaw in Wisconsin’s constitutional design for the judiciary, which makes the most senior justice the chief justice (Article VII, §4 ¶(2)). In other states (for instance, our neighbors across the lake in Michigan), the chief justice is elected by the members of the court, ensuring that the person has the confidence of a majority of justices. Perhaps Wisconsin should acknowledge that, even in the best of times, justices may hold differing judicial philosophies, and that the chief justice should have the support of at least a majority of the court’s members.
Let me close my commentary on Nichols’ op-ed by quoting Justice David Prosser’s concurrence in Donohoo (¶63, 2008): “A court that is in the vanguard of making and changing law in a way that greatly benefits some interest groups and seriously damages others is a court that is actively, if inadvertently, promoting the politicization of its own elections.” In the same way, the court will be the center of tremendous attention in the press, blogs, and elections if it is making policy and changing law. If, however, it is hearing fewer cases, and deciding them on narrower grounds, then it is a good thing that the court is receding to its proper place as “the least dangerous branch.”
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