If you find fractured SCOW decisions (you know, the kind where no opinion commands 4 votes) really irritating, today’s edition of SCOWstats won’t calm you down. As you’ve probably sensed they’re on the rise even though SCOW is composed of 5 conservatives and 2 liberals.
Update: Today’s decision by SCOW won’t calm you down either. See AllEnergy Corporation v. Trempeleau County Environment & Land Use Committee, 2017WI52. There’s a lead opinion (Abrahamson and A.W. Bradley), an opinion concurring in the lead opinion’s mandate but not its reasoning (Ziegler and Roggensack), and a dissenting opinion (Kelly, and Gableman, R.G. Bradley).
It is easier to understand the fragmentation on the Court if not for the overly simplistic and misleading labels that have been applied to members of the Court. Justices Abrahamson and A.W. Bradley are not liberals in the classic sense of Justices Brennan and Marshall, but more judicial moderates. More importantly, it makes no sense to blandly lump the other members of the Court together as “conservatives.” While Justice Crooks was a true judicial conservative and Justice Prosser tended to lean in that direction, there currently are no clear members of that stripe on the Court. Instead, there are at least three political conservatives (which is far different from being a judicial conservative). Justice Gableman tends to lean that direction as well, but will surprise you at the oddest moments. Justice Kelly has not been around long enough to really establish himself in terms of judicial philosophy, at least in criminal cases, but has shown some thoughtful independence on such matters that is encouraging. Given the various and different philosophies on the Court, it is surprising that there isn’t more fragmentation.