Wisconsin Interest
Volume 19, No. 2
July, 2010

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Using bitingly personal language, the seven justices of the Wisconsin Supreme Court spent much of the current term arguing over, among other things, when and whether they could be forced out of cases before the court.

Given how few cases have actually been resolved as the term winds toward its August end, skeptics might ask a different question: When might they actually consider a few?

As both ideological and deeply personal disputes become increasingly public, the court’s members are issuing fewer opinions than any other Wisconsin Supreme Court in decades, according to their own statistics. The opinions they are working on, moreover, appear destined for release in a spastic flurry at the very end of the term.

Meanwhile, a long-term trend continues unabated: Fewer and fewer citizens feel it’s worthwhile to even petition the high court for justice.

Well-chronicled verbal jousts among the justices — including comments that opposing arguments are “ridiculous,” “incoherent” or politically motivated — are not entirely new. They echo the very public battles Chief Justice Shirley Abrahamson waged with other justices 10 years ago. This time, though, there is reason for more serious concern.

Former Justice William Bablitch, who retired in 2003 but still practices law, does not track the statistics but is well aware of the court’s inner workings. And he is blunt.
Acrimony “can’t help but be impeding the way the court is supposed to function,” he says. “The personality rifts are extensive and deep, and it seems sometimes the decisions are more an expression of will than law.”

The “acrimony certainly has to affect the way you listen to your colleagues,” he adds. “The conservative bloc, after being called name after name, cannot help but not listen as well to the liberal bloc, and vice versa.”

Not everyone agrees the court’s performance has suffered from the strife. Greg Pokrass spent almost 25 years as a Supreme Court commissioner before leaving in 2005. The level of acrimony was “pretty bad” then, he says, and appears even worse now. But “if someone were to say, ‘This is all bullshit and they are turning out crap,’ I would say, ‘No. I don’t think so.’”

Others see it differently. Prominent attorneys on both ends of the political spectrum use words like “sloppy” and even “horrendous” to describe recent opinions, and some justices themselves have openly speculated that political considerations are influencing what should be strictly legal issues.

Many attorneys declined to talk on the record, but veteran Madison attorney Lester Pines appears to speak for a broad segment of the Wisconsin Bar when he says, “We would like to think that judges on a collegial court can bridge whatever differences they have and focus on the legal issues before them.”

He adds: “We...want to believe that the arguments we are making are being considered on their merits and are not subject to personal disputes among justices on the court.”

There is worry, Pines admits, “that one justice might instinctively react to another and shut off debate of a legal analysis because of personal animosity.”

There was a time when observers attributed court conflicts to old-school misogyny. For her first 17 years on the court, Abrahamson was the only female justice. Today, there are more female justices — Abrahamson, Patience Drake Roggensack, Ann Walsh Bradley and Annette Kingsland Ziegler — than male. Gender, though, is about the only thing some of them have in common.

There are deep ideological differences, to be sure. Abrahamson and Bradley are the two liberal stalwarts, and the court’s longest-serving justices. According to data compiled by the Wisconsin Law Journal, they are also virtual clones. They agreed with each other in 98% of all cases in the 2008-09 term.

Roggensack anchors the other end of the spectrum. The conservative jurist, first elected to the court in 2003, concurred with Abrahamson in only 60% of decisions in the last term, according to the Law Journal, and in less than half of the torts and insurance cases. The court’s two newest and youngest justices, Annette Ziegler and Michael Gableman, sided with Roggensack 94% of the time, the Law Journal found, while David Prosser concurred with her 86% of the time.

Though perceived as increasingly liberal, Justice Patrick Crooks concurred with Roggensack almost as frequently as Prosser did — although not always on the same issues and certainly not on one that has consumed much of the court’s time and energy: recusal, which is when a judge must remove himself or herself from hearing a case because of perceived bias or a conflict of interest.

There are, in fact, numerous recusal issues that have proved to be uniquely divisive — partly because they raise very personal questions about judicial impartiality but also because they feed into broad ideological conflicts that starkly play out in judicial elections.

Recusal first became a high-profile issue when Ziegler ran for the court three years ago. She was pilloried — and eventually made the subject of a long, drawn-out ethics inquiry — for not, as a Washington County Circuit Court judge, recusing herself from pro forma rulings in cases that involved a bank for which her husband served on the board.

Apparently deeply stung, she later removed herself from a Supreme Court case involving the Wisconsin Realtors Association because the group had given her campaign $8,625. However, she declined to step aside in a different case involving Wisconsin Manufacturers & Commerce, which independently spent $2 million supporting her election.

The two groups (as well as the League of Women Voters) eventually filed petitions with the court asking for clarification on when recusal is appropriate — something that, in turn, prompted lobbying by other organizations, including the Brennan Center for Justice at New York University and a group known as Justice at Stake.

Both groups describe themselves as nonpartisan proponents of improving democracy and justice. But at a public hearing last fall, Prosser made it clear he thinks they have goals far beyond stricter recusal rules. He pointedly suggested that they are subtly pushing for appointed, rather than elected, justices — a goal most often sought by the left side of America’s legal community.

After quizzing the director of state affairs* for Justice at Stake about the group’s alliances with liberal organizations, Prosser asked whether it has any conservative partners and alluded to the fact that hedge-fund billionaire George Soros, a key supporter of liberal causes, provides funding to Justice at Stake through his Open Society Institute.

In response to a question from Wisconsin Interest, OSI issued a statement saying the organization does “not take a position as to which method of judicial selection — election or appointment — is best” but added that it is concerned about the influence of special interests and does include “merit selection” of judges and public financing as possible solutions.

Representatives of both the Brennan Center and Justice at Stake deny advocating for appointed jurists — although a look at Justice at Stake’s website as recently as late May gives credence to Prosser’s question.

The site featured a New York Times commentary written by former U.S. Supreme Court Justice Sandra Day O’Connor, who believes judges should be appointed based on merit, and only after they are on the bench for a time, take part in elections. It was entitled, “Take Justice off the Ballot.”

O’Connor has a long Republican pedigree, which demonstrates that the debate over elected-versus-appointed judges does not clearly break down along political lines. But liberal lawyers, aware that conservative judges often fare better with voters, are generally more apt to prefer appointments.

The issue has particular resonance in Wisconsin, where the three longest-serving justices are the most liberal, and have seen conservatives take over the court through elections in recent years. There is much more at issue than how justices get on the court, however. There are questions, also raised during recusal debates, about what they are doing once they get there.

A majority of justices — Prosser, Ziegler, Gableman and Roggensack — eventually sided with WMC and the Realtors on recusal, adopting a rule that endorsements, campaign contributions and independent ads cannot alone constitute grounds for removing a justice from a case.

The debate, though, brought to the forefront yet another contentious dispute — charges and countercharges that cases or motions are not being dealt with as quickly as they should be, and impeding the pursuit of justice.

During a recusal discussion last December, Abrahamson charged that some of her brethren were delaying the release of their written work merely because they didn’t like a dissenting opinion.

Roggensack was plainly incredulous. “What are you talking about?” she asked Abrahamson. “I have no idea what case you are talking about.”

The chief justice herself, Roggensack argued that day in December, had not only held a case for “month after month after month after month” but was making confidential inner workings of the court public in order to “pose for holy pictures.”

Roggensack added that as a result of Abrahamson holding a case known as State v. Allen, the court had received “repeated motions from other defendants in criminal cases.”

Allen, she said, “should have been decided back in April, before we left for the term last summer.”

“Well, speaking about revealing confidences...,” said Abrahamson.

“Well, you started it, kiddo,” retorted Roggensack. “I mean, you opened the door.”

Both Roggensack and Abrahamson were referring to cases involving recusal motions, but Bradley suggested that “other things” were also being held up. She declined an interview request, so it’s not clear what she was suggesting.

What is clear, though, is that the court’s deliberations have seriously slowed.

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