The Wisconsin Supreme Court has handed down more 4-3 decisions this quarter than at any time in the past 70 years.
And so far, the three liberals on the court more often than not come out on top in these cases.
Alan Ball, a history professor at Marquette University, tracks data from his “SCOWstats” website, which analyzes Wisconsin Supreme Court decisions by numbers dating back 73 years.
Ball said the court’s 2021-22 term continues a trend that began after liberal Justice Jill Karofsky defeated conservative Justice Daniel Kelly in 2020, moving the court from a 5-2 conservative majority to a 4-4 advantage. -3.
Since then, the court’s three liberals – Justices Ann Walsh Bradley, Rebecca Dallet and Karofsky – have remained loyal together. Conservative justices Patience Roggensack, Annette Ziegler and Rebecca Bradly also generally stay together.
This puts more focus on Judge Brian Hagedorn, who Ball said has always been an unpredictable, “pivotal” justice of the court.
“Pretty much any way you wanted to define the term, he’s got it,” Ball said. “It’s pretty much the case that you can’t win without him.”
Indeed, Hagedorn was in the majority in about 85% of 4-3 decisions, by far the most of all the judges.
More surprisingly, Ball said, is that at least so far this term, the court’s liberal bloc has been more likely to be in the majority of 4-3 decisions than the conservatives.
“It’s striking when you think about a court that’s generally considered conservative that this trend could be taking place,” Ball said.
Based on a tally of court decisions through Monday, Karofsky had joined 62% of 4-3 decisions, followed by Ann Walsh Bradley and Dallet at 54%.
Among the Tories, Rebecca Bradley had also joined on 54% of 4-3 decisions through Monday, while Justices Roggensack and Ziegler had joined on 46%.
Roggensack, Ziegler and Rebecca Bradley have often used their dissenting opinions to attack Hagedorn, who has his share of criticism in the Republican base.
Hagedorn won a slim election on the court in 2019, a victory he attributes in part to support from grassroots Republican activists. Before becoming a judge, Hagedorn was chief legal counsel to former Republican Gov. Scott Walker.
Ball said the proliferation of 4-3 rulings will put more focus on the 2023 Supreme Court election, when voters are expected to replace a retired Justice Roggensack.
“If she’s replaced by someone who’s more or less liberal, then suddenly Hagedorn won’t matter as much,” Ball said. “But on the other hand, if Roggensack is replaced by someone who is conservative, then Hagedorn will remain in that swing voting position.”
The court continued its trend on Tuesday, handing down another 4-3 decision in an open dispute over the records that was decided by a familiar coalition of court liberals and Hagedorn.
While the final numbers could change by the end of the tribunal’s term, nearly half of all tribunal decisions have been 4-3 this term. In contrast, this number was only 7% ten years ago.