Monday, June 20, 2011

Supreme Failures in Madison, And DC

We are told that justice delayed is justice denied.

So what of justice deprived?

Justice destroyed.

Which is where conservatives on Supreme Courts in Washington, DC and in Madison, Wisconsin are, with the slimmest of margins, dragooning us by discounting ethics and fair play, law and process while tilting the scales of justice towards already-privileged and powerful Republicans and the corporate elites who fund them.

Take the Citizens United case, where a 5-4 ruling by the US Supreme Court gave corporations permission to release unlimited funding to third-party advocacy groups that support or oppose political candidates. The five Supreme Court Justices in the majority overturned precedent and law by agreeing that corporations, like people, had a free speech right to donate.

With major corporations and their wealthy managers already peeling off a higher and higher percentage of the nation's disposable income  - - The Washington Post documented this Sunday, again, - - the Court handed the Right a fresh, powerful tool to solidify and expand its already-unparalleled influence over political office-holding, and fiscal and social policy-making across the country.

Justice Clarence Thomas was part of that 5-4 majority despite his wife's undeclared lobbying and financial connections to political and advocacy groups which had a vested interest in the pro-corporate outcome.

The New York Times has a fresh piece Sunday about Thomas and related matters.

This is the US Supreme Court were talking about.

Regrettably, there is also the political and ethical mess that is the Wisconsin Supreme Court these days, where another one-vote majority - - here it's a 4-3 conservative majority - - has been helped to election wins and its ideological freedom by huge donations from conservative, third-party corporate groups, like the Wisconsin Manufacturers & Commerce - - and is following through by advancing a radical right-wing agenda pushed by GOP Governor Scott Walker and majorities in both legislative houses.

And its duty to guard against justice deprived? To maintain a level playing field - - at least a civil environment on the Court itself?

It was incumbent conservative Justice David Prosser who nearly threw away certain re-election in April against a virtual unknown by calling liberal Chief Justice Shirley Abrahamson "a total bitch," and had threatening to "destroy" her.

Judicial temperament? And as with US Supreme Court Justice Thomas - - are we looking a confidence builders for justice, and judicial integrity, or those undermining it?

Prosser, whose campaign opened with a pledge to "complement" Walker's ascension and the new Republican majorities in the Legislative, has done his part to maintain the 4-3 conservative majority by helping squash a serious ethics charge against fellow conservative Justice Michael Gableman.

Some background here, and in a more recent story, here:

Gableman has been controversial because of an ad in his campaign that drew a formal complaint from the Judicial Commission that alleged he violated the judicial ethics code by misstating facts in a campaign ad about his opponent, then-Justice Louis Butler. The case was abandoned after the Supreme Court split 3-3 on whether Gableman violated the ethics code.
Prosser voted with Roggensack and Ziegler to say Gableman did not violate the ethics code. The other justices - Chief Justice Shirley Abrahamson and Justices Ann Walsh Bradley and N. Patrick Crooks - wanted to send the case to a jury.
The bond between Gableman and Prosser solidified the Court's 4-3 conservative majority, and with it, the Court's tilt in a right-wing, corporate and pro-Republican direction.

Gableman campaigned on the stump this spring for Prosser - - watch the video of Gableman's remarks, where he attacks Prosser's opponent for purported partisanship, then praises without irony Prosser's earlier service as a Republican legislative leader, and then suddenly goes after Jesse Jackson and cars from Illinois seen on Milwaukee's North side.

Note also the gaudy praise for Gableman by Prosser once his victory was secured by recount:
Prosser thanked three colleagues on the court - Justices Patience Roggensack, Annette Ziegler and Michael Gableman. He singled out Gableman, calling him "tireless, indefatigable and brilliant."
Those three justices, plus Prosser, since 2008 have made up the 4-3 conservative majority on key cases.
Which brings us to last week's 4-3 verdict, wherein Prosser, Gableman, et al, approved the hurried way the State Senate passed Scott Walker union-busting measure, and also ok'd their official indifference to their own internal and appellate procedures, and the State Open Meetings law, to boot.

I posted a link to the court's website which contains the jaw-dropping, 4-3 ruling, and I also posted the full text of the Chief Justice's dissent which says that the majority, including Prosser, had diminished the Court, and the law in Wisconsin.

Heavy, heavy stuff. As the lawyer/blogger Tom Foley has explained.

And the national law and political blogger Rick Ungar at went out of his way to call the multiple implications of the Wisconsin ruling "huge," and I have pulled out below several very readable paragraphs from the Chief Justice's Abrahamson's opinion to continue to raise the alarm:
At first glance, the order appears to provide some support for broad conclusions reached on fundamental and complex issues of law. But on even casual reading, the explanations are clearly disingenuous, based on disinformation.
¶81 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 story-telling that appears to have a partisan slant. Like the order, the concurrence reaches unsupported conclusions.
¶82 In hastily reaching judgment, Justice Patience D. Roggensack, Justice Annette K. Ziegler, and Justice Michael J. Gableman author an order, joined by Justice David T. Prosser, lacking a reasoned, transparent analysis and incorporating numerous errors of law and fact. This kind of order seems to open the court unnecessarily to the charge that the majority [footnotes deleted. my edit] has reached a pre-determined conclusion not based on the facts and the law, which undermines the majority's ultimate decision.
¶83 Justice N. Patrick Crooks explains the flaws in the order's and concurrence's attempt to recast the petition for supervisory writ as an original action. He explains why this court should decide this case in an orderly appellate review of the circuit court's order with a full opinion. I join his writing.
¶84 I write to emphasize that in a case turning on separation of powers and whether the legislature must abide by the Open Meetings Law and the Wisconsin Constitution in adopting the Budget Repair Bill, it is imperative that this court carefully abide by its authority under the Constitution and follow its own rules and procedures.
¶85 A court's failure to follow rules and a court's failure to provide a sufficient, forthright, and reasoned analysis undermine both the court's processes and the decision itself. Only with a reasoned, accurate analysis can a court assure the litigants and the public that a decision is made on the basis of the facts and law, free from a judge's personal ideology and free from external pressure by the executive or legislative branches, by partisan political parties, by public opinion, or by special interest groups...
¶96 The order and Justice Prosser's concurrence are based on errors of fact and law. They inappropriately use this court's original jurisdiction, make their own findings of fact, mischaracterize the parties' arguments, misinterpret statutes, minimize (if not eliminate) Wisconsin constitutional guarantees, and misstate case law, appearing to silently overrule case law dating back to at least 1891...
¶105 In his concurrence, Justice Prosser makes his own factual findings. Indeed, most of his concurrence is a statement of happenings. Yet Justice Prosser asserts in ¶19 "that there are no issues of material fact that prevent the court from addressing the legal issues presented."
¶106 Where do all of these facts come from? Not from the certification proceedings (which the order denies) or from the petition for supervisory writ (which the court transforms into an original action). Not from the decision or final judgment of the Dane County Circuit Court. Indeed, some of the "findings of fact" are in direct contravention of the facts found by the circuit court. By casting this as an original action, the four justices are able to skirt facts that may impede the rush to their ultimate destination...
¶125 In sum, the litigants and the public deserve more than the majority's hasty judgment.
¶126 Each person must abide by the law. Each branch of government must abide by the law. This court must ensure that the law governing judicial decision-making is followed. Justice Brandeis stated these principles eloquently as follows:
In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. [footnotes deleted.My edits.]...
If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. . . . Against that pernicious doctrine this court should resolutely set its face. Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting).
¶127 The resoluteness called for by Justice Brandeis is no less applicable to the observance of the fundamental principles of the courts in our system of government. Unreasoned judgments breed contempt for the law. The majority, by sacrificing honest reasoning, leads us down a pernicious path. The order today departs from fundamental principles. It fails to abide by the court's Constitutional authority and its own rules and procedures and harms the rights of the people from whom our authority derives. 
Bad enough that the ruling, called "rash" and "flimsy" editorially by The Milwaukee Journal Sentinel, was written and released.

Worse, it was issued after Assembly Republican Majority leader Jeff Fitzgerald - - brother of the State Senate Majority Leader Scott Fitzgerald, whose shoddy supervision of the Walker union-busting measure's vote set off the court case in the first place - - had announced publicly that he was prepared for the Assembly to get on a path to re-vote of the issue if the court's ruling did not come down on a timetable of his choosing.

That would have forced the Legislature to again vote on the divisive bill - - something many Republican legislators hoped not to do, especially the six GOP State Senators facing recall elections in a few weeks traced to voter anger at their vote the first time in favor of the bill.

And right on time - - the 4-3 conservative majority to the rescue!

The court began signalling its obeisance to Walker & Co. by agreeing just few days earlier by taking the case based on a questionable appeal, then issued the ruling so close to the GOP's timetable and political needs that questions - - as Abrahamson said - - continue about the Court's independence.

On this subject, and also because it's a wonderful read, I offer an observation culled from a column by the veteran Capitol reporter Steve Walters as my final justice-in-Wisconsin exhibit.
The court's imminent ruling became the Capitol's worst-kept secret. It was finally posted on the Supreme Court's website.
Jeff Fitzgerald told Capitol reporters he didn't know the court was going to meet his Tuesday deadline. If he really didn't, he might next consider a career that involves picking Big Board stocks.
And one more about the US Supreme Court in an editorial several months ago about Justice Thomas in The New York Times that illuminates how far down the rabbit hole Wisconsin's proud Court has fallen:
In a landmark article about judging, the scholar John Leubsdorf said a justice should abide by three principles: avoid basing a vote on personal considerations; avoid basing a vote on facts learned outside the case; and consider both sides’ arguments.


gnarlytrombone said...

An excellent post. But this doesn't capture what happened:

The court began signalling its obeisance to Walker & Co. by agreeing just few days earlier by taking the case based on a questionable appeal

What the court did what actually more bizarre and troubling. The June 6 hearing was on a petition for supervisory writ - an accusation that Judge Sumi blatantly and egregiously exceeded her authority - filed on behalf of Michael Buebsch. The petition sought relief from the temporary restraining order, and it was arguably made mute by Sumi's final decision.

Last Tuesday, the court threw out the Huebsch petition. It also threw out a certification from the Court of Appeals that was the result of an earlier petition filed on behalf (against his will) of Doug LaFollette.

Then, voila, the majority created its own, new petition for an original action (see Tom Foley's post for details of that slight of hand). It short-circuited the appeals process entirely.

That meant that the court did not have access to the complete trial record as it would have had the DOJ filed an appeal to Sumi's final decision. Nor did it appoint its own special master to collect facts and testimony.

Prosser cherry picked and misstated some facts from a brief filed by Judge Sumi. The source and veracity of other facts is completely unknown. This is, needless to say, not normal procedure.

So with no appeal and no factual record in hand, the majority created and decided the original action in one document. Astounding, no?

James Rowen said...

Thanks for adding detail.

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Reagan's Disciple said...

A 4-3 conservative ruling is "justice destroyed," but a 4-3 liberal ruling is democracy in action and a voice of the people right?

I guess it is all in the eye of the beholder.

1 more day until conceal carry.... I should have designed and marketed a Walker "advent type calendar" where you get to open each day of the month and countdown the legislative victories for conservatives.

If I made money off that idea, does that make me evil? Or, would the democrats just feel they deserve part of my profits to pay for one of their social program?

Reagan's Disciple said...


On a simpler note, the WI SC just ruled that a circuit court judge in Madison does not have veto power over legislation that has not become law.

You may not like the ruling, but it was a very good ruling to keep the judicial branch separated from the legislative branch.

gnarlytrombone said...

You may not like the ruling, but it was a very good ruling to keep the judicial branch separated from the legislative branch.

I fully expected this majority to reach this conclusion. But whatever you think about the outcome, the way it went about it is a bleeping disaster.

There were important issued that needed to be addressed and clarified, ably outlined by the Court of Appeals in its certification. The majority ripped through them like Sherman marching to the sea, recklessly blowing up more than a century of precedent.

Not only is the Open Meetings Law (and quite possibly Article IV Section 10) decimated, any future legislative attempts to improve and enforce transparency will now be crippled until this mess is cleaned up.

clyde winter said...

This is an illuminating, on target article, and comments from gnarlytrombone have been helpful and informative. However, James, I believe that the unjustifiable 5-4 CU v FEC ruling did not merely remove long-standing limits on corporations to oppose or support political candidates. Limits have also been lifted on corporations ability to weigh in, financially, on supposedly non-partisan elections and selections (such as judges and Justices) and on legislation and regulations and appointments and government actions in general, employing, to the hilt, the terribly faulted U.S. Supreme Court determination that a corporation fully possesses the Constitutional rights that were explicitly defined for a "person".

Is it possible, or likely that the decimation of the Open Meetings Law and the state Constitution, and the crippling of future legislative efforts to improve transparency, by the Wisconsin Supreme Court, is not at all an accidental, unintended consequence of the way this case proceeded and was mishandled? Will the principals managing this case be amply rewarded by legal entities newly unleashed (by CU v FEC and by this very ruling) from regulations once somewhat restraining their influence over government and the two major political parties?
How will the people ever know?

The problem with corruption is not the appearance of corruption (as government officials and the mass media continually insist). The problem with corruption is how to end the corruption when the government, including the highest courts, is part of the problem.