The Wisconsin Policy Research Institute: Does Anyone Really Care About the Supreme Court? By Mike Nichols

We’re once again having that old debate over whether to elect or appoint our state Supreme Court justices.

Forced to choose, it’s clear from statistics issued the other day, increasing numbers of Wisconsinites are coming down firmly on the side of “Who cares?” Or, perhaps, “Why do we have a Supreme Court anyway?”

This was not the attitude ten years ago.

Back then, Wisconsinites looking for justice from the Supreme Court typically filed over 1000 petitions for review of Appeals Court decisions each year. Since then, the number has steadily plummeted. I noted in a recent story in Wisconsin Interest that during the 2008-2009 term that ended Aug. 31, 2009, there were only 777.

This term, it is now clear, the number will be even lower – much lower.

By the end of July, Wisconsinites had filed only 655 petitions for review of Appeals Court decisions, about 9% fewer than last year’s number at the same point in time.

The number of people turning to our Supreme Court, it is now clear, is on track to be down about 30% since 2000.

It’s a long-term trend that could have a variety of explanations, including increasing costs of litigation and fewer appellate court decisions due to mediation. But the decrease in petitions for review (there are other avenues through which cases get to the Supreme Court, but this is the primary way) has been particularly precipitous in the last few years and 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 causing the lawyers to give a second thought to whether they want to go up there and roll the dice.”

After all, it’s not just the number of petitions that has dropped, it’s the number accepted – as well as the number of opinions issued. For years, the court issued well over 100 opinions per year, and put out as many as 158 (including attorney discipline cases) as recently as 2005, according to statistics from the Office of the Clerk of the Supreme Court. During the 2008-2009 term, the justices issued just 87 – 64 of which were important civil or criminal cases.

By the end of July this year, we now know, they had issued 98 – 63 of which were civil or criminal cases. Last year, it is clear, was not an anomaly. This court is among the least productive in decades.

It is also, it appears, the least timely.

Tom Sheehan, the court information officer, tells me Supreme Court terms are still “effectively done June thirtieth.” That was once literally true. Throughout much of the 1990s, it was rare for the court to release opinions after the end of June. This year, the court issued 34 of the term’s big 63 civil and criminal opinions in July.

Sheehan says he thinks the justices were “were done with all their work at the end of June,” and that opinions just weren’t released until later. But it seems clear to me that, not only is the court issuing fewer opinions, it’s struggling with the ones it does publish and – largely due to all the acrimony and endless back-and-forth – blasting them out only when they have to in a spastic flurry at the very end of the term. This is not a lazy court – but it is one, attorneys of all stripes have commented, that could write much better opinions. Pulling the equivalent of a judicial all-nighter at the end of a troubling term is not the way to achieve that.

It’s not really surprising. The justices publicly accused each other during the term of holding cases because the liberals and conservatives on the bench just don’t like what their brethren are writing.

More to the point, they don’t like – or trust – each other.
Given the latest statistics, it’s equally as clear that fewer and fewer Wisconsinites like or trust – or even bother with – them.

-August 19, 2010

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