Wisconsin Supreme Court Chief Justice Patience Roggensack wanted to use her Hallows Lecture at Marquette Law School on March 7 “to start what I hope will be a public conversation about a rising challenge to the institutional legitimacy of our courts, both state and federal.”
Roggensack launched the conversation with strong words for those she thinks are harming the standing of courts as a whole. She named names and spoke forcefully about the impact of those inside and outside the legal system who have disparaged some judges and justices in personal terms or who have said the Wisconsin Supreme Court and other courts make decisions based on political allegiances. She criticized what she called their “tough talk.”
“Most tough talk comes from those who have no conscious intent to harm the institutional legitimacy of courts, but have not considered the unintended consequences that may follow from their fully protected speech,” Roggensack said.
The consequences will be great, Roggensack warned, if courts lose the standing that they must have to function as a pillar of democratic government. Roggensack told a capacity audience in Eckstein Hall’s Appellate Courtroom, “Public confidence in courts contributes to institutional legitimacy.” She said, “Voluntary compliance with court decisions is at the foundation of judicial authority.”
The chief justice said, “Tough talk undermines the perceived fairness and independence of courts on a broader basis than just the decision when the speaker chooses words that imply that the court is biased, rather than choosing words that disagree with the way the rule of law has been applied in a particular case. And the more colorful and the more sarcastic the choice of words, the greater the likelihood that they will be repeated in the press, on the internet, and in social media.”
In the past, decisions or opinions of individual justices were often criticized, but generally in ways that were respectful and did not tear a court’s legitimacy, Roggensack said.
“Well, times have changed,” she said, proceeding to give examples involving two other Wisconsin Supreme Court justices, Shirley Abrahamson and Ann Walsh Bradley, and the late U.S. Supreme Court Justice Antonin Scalia. In some cases, she said, their criticism went too far in attacking colleagues.
“Am I opposed to dissenting opinions? Oh, my goodness, of course not,” Roggensack said. “But too often, sarcastic attacks tear at the fabric of institutional legitimacy simply because of the language they use.”
Roggensack also criticized others who have been involved in the court system for what they have said, and she criticized the way the press and social media have picked up on such criticism. “Some justices purposely write to engage the press in discrediting decisions and shape public opinion,” Roggensack said. “However, their tough talk also discredits in a more global fashion because those comments have the potential to reduce the institutional legitimacy of courts in general by implying that justices decide controversies before them based solely on their own personal policy preferences.”
She criticized the news media for emphasizing in some stories elements such as which president appointed judges to federal appeals courts.
Roggensack said, “It is quite clear that we have an emerging challenge for our judiciary, state and federal, elected and appointed. We must maintain and protect the institutional legitimacy of our courts.” She cited a 1958 quote from John F. Kennedy that called for focusing on taking responsibility for the future rather than affixing blame for the past.
Roggensack’s call for a conversation on the subject clearly prompted just such conversation at a reception afterward for those who were present and is likely to attract more conversation going forward. It also attracted some broader public attention, including this Milwaukee Journal Sentinel story, this story in the Wisconsin State Journal, and this piece on the Urban Milwaukee web site. Video of the lecture may be viewed by clicking here.
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