Thursday, June 16, 2011

Former Justice Finds Court's Quick Ruling Disconcerting

(Reposted, from 6/15, with updates)

We know that justice delayed can be justice denied, but what happens when the opposite - - say, justice on a treadmill with a tab of amphetamine - - goes to work to shape the most controversial of rulings?

I'm looking for answers from the sitting Chief Justice (more from Shirley Abrahamson towards the end) and from Janine Geske, a retired Justice and widely-credible educator and public citizen in the Milwaukee area.

Take a look at two of Geske's recent statements about the way the Court handled the Walker union-busting bill case:

Prior to the Court's release of its pro-Walker ruling, Geske said to that it was difficult to pull together a majority opinion in an important and complex case.

Geske, now a professor at Marquette University Law School, said before oral arguments, one of the justices would have been randomly selected by the chief justice to act as the report judge and direct discussions after the hearing. Following those talks, someone from the majority will be selected to write a decision and will begin crafting it before circulating it to the other members. That draft will then be critiqued and those in the minority can write their dissent. Once the dissent is in, the majority opinion will be redrafted to respond and both sets of opinions will go through final revisions.

She said it would normally take her two to three weeks to draft a majority opinion while she was on the bench, in part because of the other cases she was handling.

This case is more complex because there are two issues at play. One is whether the court should take the case without first allowing the final pieces to play out at the circuit court and appeals court.

She said her impression of the oral arguments suggested at least a majority of the court is prepared to take the case now.

Then there are the merits of the case and Dane County Judge Maryann Sumi’s ruling invalidating the collective bargaining legislation law over an open meetings violation.

Geske, who describes herself as “pretty conservative judicially, not politically,” said after listening to much of Monday’s oral arguments, she believes the court shouldn’t take the case and instead should allo
So she predicted that the Court would take its time -- even as legislative leaders and Milwaukee righty talker Jeff Wagner, an attorney, were publicly demanding or predicting a decision to meet the scheduling needs of the Assembly.

I wondered at the time - - do they know something the rest of us don't?

After the ruling, Geske explained to the Journal Sentinel why the quick ruling was disconcerting:
The court, which ruled 4-3, to reinstate the collective bargaining law left the perception that the decision was partisan because of the timing, she said.
"They had five hours of oral argument and issued a complicated decision within a week," Geske said in a telephone interview. "They didn't use their usual process."
Geske, a distinguished professor of law at Marquette University's Law School, is also a former justice. She served on the state's high court from 1993-'98.
The court, she said, is always faced with cases that both sides want action on quickly. But the role of the court is to take the case, analyze it thoroughly, review prior case law and render a decision.
"You want to establish the law for the future," Geske said. "Cases always are urgent. But the court always takes its time."
A nice "get" by Don Walker.

Definitely worth a read, and Geske's remarks probably helped inform the editorial board, which has since weighed in, calling the ruling injurious to the Court's standing, "rash" and "slapdash."

And Geske's commentary certainly underscores a point that Chief Justice Abrahamson made in her mighty dissent - -  that it will enable people to conclude that the majority...
“...reached a pre-determined conclusion not based on the facts and the law, which undermines the majority's ultimate decision."
Along with other troubling issues, said Abrahamson, who joined the Wisconsin high court in 1976, and is the nation's longest serving state supreme court justice:
“Justice Prosser’s concurrence is longer than the order. The concurrence consists mostly of a statement of happenings. It is long on rhetoric and long on storytelling that appears to have a partisan slant. Like the order, the concurrence reaches unsupported conclusions.”


Reagan's Disciple said...

I see lots of thoughts on the quick ruling, but none of these address or claim the ruling that was made was incorrect.

It seems they are just upset it came faster and before they could get more contracts passed.

Anonymous said...

I'm on board with Geske. The courts are expected to stand strong against external stress.

I value careful deliberation. It's a loss for Wisconsin when a Justice succumbs to the pressure to perform on command.

garage mahal said...

We know why the GOP never revoted on the bill. No need to revote before the recalls, because they knew had the Supreme Court in their back pocket.

Anonymous said...

@Baldwin's Disciple:
Yesterday, Rowan offered thoughts on the correctness of the ruling. You're not gonna see all the thoughts if you don't actually read them even when they're indexed neatly on the left side of your screen.

I am curious: Do you feel this ruling has affected the alleged urgency of the extraordinary session?

James Rowen said...

Let's at least spel my name rite.

Anonymous said...

Will do. My bad, Rowen! I've got a slow-reading disability that lends itself toward spelling mistakes.

Reagan's Disciple said...

@Tina Fey's Disciple,

Who is Baldwin's Disciple? Is that your attempt at humor?

You receive a zero for originality in screen names and clever retorts.

The session will curb the endless hours of debate and the 100s of amendments that are being planned by the democrats to simply delay the process.

Even if the republicans allowed 500 hours of debate and 1000 amendments, the left would still yell, "shame" and continue beating their drums, riding their segways and yelling about subverting the process whenever the debate were to end.

"Elections have consequences..." Obama 2008

James Rowen said...

To TFD: A common mistake in these parts. I grew up in DC in a journalist's family, and we were often mistaken for the family of Carl Rowan. We got so many calls for him that I'd say "Uncle Carl is at a different number."

Anonymous said...

@Jack's Disciple:
So I see you are concerned about a "Give a mouse a cookie" scenario. (I hate that book cause even though the pictures are soooo cute, it's kind of about the "nightmare" of a welfare state).

Am I understanding correctly that you think people having a lot of input is a reason to give them no opportunity for input?

Reagan's Disciple said...

Wow, your comedic wit just doesn't stop. I love that my SN incites so many quips.

I'm all for input if input is what they are really trying to do. However in the recent cases of the democrats, it is not about input but rather delay, delay, delay. Then when time is called they shout shame, shame, shame and yell about subverting the process, which they would have shouted even if the debate were ended after 100, 1000 or 10,000 hours. You know the playbook.

I don't like the mouse book either. I prefer Dr. Seuss and my favorite figure in modern literature, The Once-ler from Seuss' classic The Lorax.

After all, a thnead is what everyone needs.

Anonymous said...


No, I don't know that playbook. But do tell me more about it.

Shutting down avenues of debate in a democracy is a violation of Wisconsin's basic principles.

I guess, from your proposed debate->amendments->shame cycle, that you think the Democrats don't actually have anything they want.

Check out WisDems to learn a few of the parties goals.

enoughalready said...

This ruling is just Wisconsin's version of Bush v. Gore: pure politics.

Reagan's Disciple said...

Thanks, but no thanks. I'm hoping that CC gets passed today or tomorrow by the assembly now that they have finished the budget.

Reagan's Disciple said...


Glad that you agree our SCOWI got the ruling correct as did the SCOTUS in Bush/Gore.

Anonymous said...

Global Warming is applied politics at the University of Wisconsin.