Wednesday, June 29, 2011

Wisconsin Supreme Court's Growing Partisan Cast

I'd written earlier this month about the confidence that Republicans had shown publicly about receiving a decision from the Wisconsin Supreme Court on Gov. Walker's union-busting bill to meet a timetable dictated by the State Rep. Jeff Fitzgerald, the GOP's budget-writing Assembly leader.

Without a ruling in hand that validated the legality of the Walker bill - - the collective-bargaining cancellation measure whose quickie approval in the State Senate set off a political firestorm statewide - - Fitzgerald said he'd insert it into the pending omnibus budget bill, forcing another debate and vote on the contentious item.

Republicans had the votes to pass it, but did they really want to go go back into that hot territory again?

Now we are learning in the reporting on the apparent scuffle inside Justice Bradley's office that Justice David Prosser and Chief Justice Shirley Abramahson had a sharp disagreement about the schedule for writing and releasing that decision just prior to the Prosser-Bradley confrontation.

Four justices - Prosser, Michael Gableman, Patience Roggensack and Annette Ziegler - were frustrated on June 13 that a decision putting in place Gov. Scott Walker's plan to limit collective bargaining was not yet ready for release.
The four made up the majority in the split decision, and they believed an agreement had been reached the Friday before to have the opinion ready to release on that day.

Walker's fellow Republicans who run the Legislature had insisted they needed a decision from the court by June 14, when they were to take up the state budget.
About 6 p.m. on June 13, Prosser and the others walked together to Chief Justice Shirley Abrahamson's office.
She wasn't there, so they went to Bradley's office, where Abrahamson and Bradley were.

The encounter quickly grew heated and did not last long - perhaps 10 minutes in all.
Bradley's chambers consist of three connected offices. Bradley and Abrahamson were in the office where Bradley herself works. The others were in a connecting room, with at least some of them positioned in the entryway into Bradley's office.

They argued about when the decision would be released and their frustrations over what the majority considered delays.

Bradley asked Prosser to leave, but he did not and the justices continued to argue. Abrahamson said she did not know when her opinion would be ready, saying it might take a month.

Prosser then told Abrahamson - with whom he has often clashed publicly and privately - he'd lost faith in her leadership. Bradley got close to Prosser and again demanded that he leave, with some sources saying she charged at him with her fists raised.
 Of course, the decision that released just as Republicans predicted and needed. It vindicated the way the bill had been approved in the State Senate - - where Jeff Fitzgerald's brother Scott is Majority leader.

The 4-3 ruling by the conservative majority came with a long concurrence from Prosser - - he had been the GOP's leader in the Assembly before reaching the Court - -  and a tough dissent from Abrahamson that said the ruling lacked fairness, accuracy and process.

And she specifically ripped Prosser's opinion.
¶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 has reached a pre-determined conclusion not based on the facts and the law, which undermines the majority's ultimate decision.
This posting contains a link to the Supreme Court's website where all the various opinions in the case can be found, as well as the full text of Abrahamson's dissent.

So we are left with basic questions about the Court that go beyond whether two Justices had a physical confrontation:

*  Is the Court now so partisan that it bases rulings on one party's needs?

*  Are there coordinated lines of communication from the Court to outside, partisan officials?

* Is there no real separation of powers anymore in Madison, with the Court's conservative majority dancing to a tune set by Go. Walker and his legislative allies?

I remind everyone that when David Prosser's election committee hired its campaign manger on the heels of the GOP's big fall 2010 wins in the Governor's race, and in the Legislature, too, the campaign committee made made this statement:
"Our campaign efforts will include building an organization that will return Justice Prosser to the bench, protecting the conservative judicial majority and acting as a common sense complement to both the new administration and Legislature."


Ed Blume said...

Yes to all three questions.

gnarlytrombone said...

Let's just get it over with already. If we can quasi-privatize the Commerce Department, surely we can create the Wisconsin Legal Development Corp.

jpk said...

"Is the Court now so partisan that it bases rulings on one party's needs?"

Unfortunately, yes. All courts are partisan. Judicial scholars have noted this for years and years. Both liberal and conservative courts now rely less on precedent (stare decisis) and more on their own political preferences.

Anyone interested should read Segal & Spaeth's The Attitudinal Model Revisited (2002).

James Rowen said...

To JPK: Partisan to the extent of maybe communicating decision schedules, content?