THE DEMISE OF THE LAW-DEVELOPING FUNCTION: A CASE STUDY OF THE WISCONSIN SUPREME COURT.

• Author: Croy, Skylar Reese

1. Introduction II. Historical Background On Judicial Opinion Writing A. Opinion Writing in England B. Opinion Writing in the United States III. The Rise in Lead and Majority/Lead Opinions at the Wisconsin Supreme Court A. The Definition of a Plurality, Lead and Majority/Lead Opinion B. Documenting the Rise in Lead and Majority/Lead Opinions C. Hypotheses that May Be Disregarded 1. Increasing Complexity and Controversy 2. Increasing Opinion Length 3. Increasing Caseload D. The cause IV. Problems Related to the Rise of Fractured Opinions A. Lead and Majority/Lead Opinions Under Wisconsin Law B. A Failure of the Law-Developing Function 1. Less Law 2. Confusing Law C. Problems for conservatives 1. Conservative Jurisprudence's Disadvantage 2. Rehashing "Minority Vote Pooling" V. Possible Solutions A. Judicial Humility B. Screws Rule C. Compromise Without a Separate Writing D. Reestablishing Dicta E. Moving Material that Fails to Garner a Majority to a Separate Writing F. Reducing the Issues Taken Per Case on Review VI. Conclusion I. INTRODUCTION

   Antonin Scalia was appointed to the U.S. Supreme Court to be a "consensus builder." (2) In other words, he was supposed to view himself as a member of a collegial court that worked together to create precedent. At his confirmation hearing, Senator Strom Thurmond (R-S.C.), the Chairman of the Committee on the Judiciary, stated:

   [T]hose who have been associated with Judge Scalia throughout his life--even if they might disagree with him philosophically--consistently describe him as: A person who is open-minded, a consensus builder, and an individual with a keen intellect and sense of humor. These are unquestionably qualities we desire in a person who is to be elevated to the highest court in the land. (3) However, during his tenure, Justice Scalia was not a consensus builder. Indeed, in an interview he gave with Charlie Rose in 2016, he exclaimed, "I can't be a consensus builder":

   J. Scalia: Look, when I came on the Court, the word was, you know, Scalia will be a consensus builder, cause I'm such a charming fellow. I will be a consensus builder.

   Rose: Is that what they said?

   J. Scalia: No, they didn't say the charming part, but they did expect me to be a consensus builder, he you know, he gathers the votes. I can't be a consensus builder.

   Rose: Because?

   J. Scalia: Because I can't trade. You see [Justice] Bill Brennan, who was an evolutionist, he could deal. He could go to his colleague, you know, "I want to change the Constitution this far." And go, "God gee Bill, I can't go this far." And he'd go, "well what about this far." He can deal. Now I can't deal. If I'm, if I'm, doing the text, what can I say, you know, "half way between what the text really means and what'd you'd like it to mean?" Is that the deal I'm going to cut?

   Rose: Yes, that would be it.

   J. Scalia: You can't do it. (4)

   Justice Clarence Thomas once made a similar statement, in which he suggested that compromising is inconsistent with his oath of office. (5)

   Scholars have long been aware that some conservatives subscribe to an anti-consensus building philosophy. As one wrote: "As an ideologue, Justice Scalia preferred his subjectively 'correct' answer to the most mutually agreeable answer. Justice Scalia cite[d] his adherence to originalism and textualism as the reason for his inability to form coalitions." (6) Conservatives tend to value the "great dissenter," who always views the resolution of a legal dispute through his or her subjective lens. (7) Lest there be any doubt that conservatives have trouble forming coalitions, the five conservative justices authored sixty separate writings this past term at the U.S. Supreme Court. (8) The four liberals authored thirty-six. (9) Furthermore, conservative justices authored fifteen "solo" separate writings, while liberal justices authored four. (10)

   Of course, there have been a few famous liberal justices who were not keen on compromise; but often, the trouble for liberals seems to be psychological and not jurisprudential. (11) In fairness, conservatives have the same psychological roadblocks to compromise. However, unlike conservatives, liberals have not made an unwillingness to compromise an integral a part of their judicial philosophy. Indeed, law review articles have been authored praising liberals for their ability to form coalitions. (12)

   The problem with conservatives' anti-consensus building philosophy is that high courts exist to develop the law. (13) When members of a high court refuse to work together, the result is often that the court has no majority opinion. This is a disservice to the public because it confuses, rather than clarifies, the law. As Chief Justice John Roberts explained: "I think that every justice should be worried about the Court acting as a Court and functioning as a Court, and they should all be worried, when they're writing separately, about the effect on the Court as an institution." (14) In the words of several scholars, "[w]hen the Supreme Court fails to generate a controlling precedent, the result arguably is an erosion of the Court's credibility and authority as a source of legal leadership." (15)

   Conservatives' anti-consensus building philosophy has found its way to the Wisconsin Supreme Court, as demonstrated by a rise in decisions with no majority opinion. This Article has three goals: (1) to persuade conservative justices to abandon their anti-consensus building philosophy, (2) to document the problems the philosophy has caused and (3) to propose solutions. This Article focuses on the Wisconsin Supreme Court; although, as it notes at various points, this problematic philosophy is likely not unique to Wisconsin's high court.

   This Article proceeds in four parts. Part I summarizes the history of judicial opinion writing. This context is helpful for understanding why a rise in decisions with no majority is a threat to the legitimacy of the judiciary. Part II documents the rise in opinions without a majority and argues it largely stems from the addition to the bench of conservatives with an anti-consensus building philosophy. Part III addresses consequences of this trend. Most importantly, and most obviously, the increase in decisions with no majority opinion indicates a failure of the Wisconsin Supreme Court to perform its law-developing function. There are less intuitive problems as well. These problems primarily affect conservative jurisprudence, and their existence indicates that some conservatives ought to rethink their anti-consensus building philosophy. Part IV discusses possible solutions.

2. HISTORICAL BACKGROUND ON JUDICIAL OPINION WRITING

   This Part summarizes the history of judicial opinion writing. This history is helpful for understanding why majority opinions are so important. It also discusses the concept of a collegial court. Indeed, this concept developed because an inability to author majority opinions threatened the legitimacy of the judiciary.

   A. Opinion Writing in England

   English courts had long utilized seriatim opinions at the time of America's founding. "Seriatim" means, "[o]ccuring in a series." (16) In the context of judicial opinions, "seriatim opinions" are "a series of opinions written individually by each judge on the bench, as opposed to a single opinion speaking fort the court as a whole." (17) Professor M. Todd Henderson, of the University of Chicago Law School, explains: "For almost a thousand years, decisions of multimember courts in England were delivered orally by each judge seriatim and without any prior intracourt consultation." (18) This "long and unbroken tradition" temporarily changed when William Murray (later known as Lord Mansfield) became Lord Chief Justice in 1756. (19) He "introduced a procedure for generating agreement and consensus among judges and then issuing caucused opinions." (20) In essence, Lord Mansfield created what scholars today would call a "collegial court." (21) "The judges met collectively in the secrecy of their chambers, worked out their differences into compromise decisions, and then wrote what was to be delivered as an anonymous and unanimous 'opinion of the court.'"22 Lord Mansfield hoped that his approach would bring clarity to English commercial law, which had become extremely complicated. (23) Alas, his practice was abandoned shortly after his retirement. (24) Only recently has Lord Mansfield's approach returned to England. (25)

   B. Opinion Writing in the United States

   England's legal traditions--including its use of seriatim opinions--became norms in colonial America. (26) Importantly, many courts had been operating before Lord Mansfield's innovations, so it should not be surprising that they did not follow his approach. (27) Over time, courts were inspired by Lord Mansfield, but his ideas were controversial. (28) The first court to abandon seriatim opinions was the Virginia Supreme Court under the leadership of Chief Judge Edmund Pendleton. (29) Notably, Chief Judge Pendleton was condemned by the likes of Thomas Jefferson, who saw the practice as illegitimate. (30) Jefferson believed that seriatim opinions increased transparency and made individual judges accountable. (31) Lord Mansfield's approach was abandoned in Virginia when Chief Judge Pendleton's successor took his seat, in part due to Jefferson's efforts. (32)

   Despite the controversy, American courts soon became aware that they needed to consider Lord Mansfield's approach, or they risked being the weakest branch of government. For example, many early U.S. Supreme Court decisions were issued as seriatim opinions. (33) The Court was attacked by the other branches and the press, in part because of its inability to pronounce law in a clear manner; indeed, the nation's first Chief Justice, John Jay, left the Court and refused to return because he believed that the Court was unable to earn the "public confidence and respect." (34) Calder v. Bull (35) is a "classic" example of the confusion...