On September 27 the Madison Lawyers Chapter of the Federalist Society hosted Prof. Rick Esenberg for an event reviewing the significant cases that were decided by the Wisconsin Supreme Court during the historic 2011-12 term and a preview of a few cases the Court plans to hear in its 2012-13 term.
Madison Chapter President Andrew Cook began the event by drawing the attendees attention to a Wall Street Journal editorial “Wisconsin’s Judicial Recall,” which appeared the same day as the event. The editorial discusses the treatment of Act 10 in the courts, and the important governance role the courts play. (link to editorial)
Prof. Esenberg, who is President and General Counsel of the Wisconsin Institute for Law & Liberty and Adjunct Professor at Marquette University Law School, began his presentation by explaining that the court may not be as divided as people think.
Though public perception is that the court is a 4-3 court, Esenberg’s analysis shows it is more often a 5-2 court, with Chief Justice Abrahamson and Justice Bradley being the 2. There were actually only four 4-3 decisions on the merits. Esenberg also analyzed the median release date of decisions and found that this last term had the earliest median release date in 15 years.
Esenberg began his review of the 2011-12 term with a discussion of judicial recusal. Recusal cases against Justice Gableman were perhaps the most contentious cases of the term; highlighting the divisions on the court. Esenberg does not think that the next term will bring as many motions for recusal it has played out.
The term featured a couple of unusual cases where dissenters attacked the majority or wrote a concurring opinion to state that they agreed but did not like it.
Esenberg concluded by highlighting a few highly anticipated upcoming cases: Voter ID and Act 10.