The Wisconsin Supreme Court has received a fair bit of coverage from the news and editorial desks of the state’s media outlets over the past five years. Sometimes the editorial writers have criticized particular decisions in cases, sometimes particular campaign statements, and sometimes the overall structure of the court. This morning’s news story by the Madison Capital Times is the latest to decry the course of the court:

[W]hat’s certain is that the political divisions in the court, once kept behind closed doors, are now on public display. Until recently, one could hardly imagine a public meeting where one justice would accuse the chief justice of posing for ‘holy pictures,’ then addressing her as ‘kiddo,’ while another rudely dismisses a colleague’s argument as ‘ridiculous.’ ‘It’s a shame because they’re just acting like schoolchildren,’ former Justice William Bablitch says.

It’s a shame that people have such short memories, and that the Capital Times story was written in an utterly one-sided way. 

First of all, this is not the first time that disagreements between the court’s members have been aired in public. One decade ago, the court’s members were just as divided, and just as sharp in their rhetoric. Chief Justice Abrahamson, in the early part of her tenure in the center chair, began consolidating power in the office of the chief justice. Several other members of the court vigorously objected to these changes. When the Chief faced re-election soon thereafter, members of the court actively supported her opponent. The Milwaukee Journal Sentinel reported at the time:

In a rare move, three state Supreme Court justices who have publicly aired gripes against Chief Justice Shirley Abrahamson endorsed her opponent, Sharren Rose, in a television ad that began airing Thursday. Abrahamson said the endorsements weren’t surprising considering earlier complaints about her made by Rose’s backers, Justices William Bablitch, N. Patrick Crooks, and Donald Steinmetz. The trio of justices, along with Justice Jon Wilcox, have bitterly complained about Abrahamson’s style as a court administrator . . . .

The race set a new record for campaign spending on a Supreme Court race, leading to much wailing and gnashing of teeth on the editorial pages (for a general review of the coverage of the race, see the article by Deans Eisenberg and Kearney at 85 Marq. L. Rev. 593). The Wisconsin Supreme Court is a resilient institution, however, and survives intact ten years later. All of which is to say, this is not the first time in recent memory that the court has gone through an acrimonious period where its members discussed disagreements in public (one might also mention the 2004-2005 term and the dissents from the court’s handling of the Green for Wisconsin original action).

Second, the Capital Times’ story was not a balanced report on recent events at the court. For instance, “[The conservative] majority flexed its muscle Oct. 28 when it pushed through recusal rules, written by lobbying interests, that codify the current practice of letting judges decide if they should sit out a case based on campaign spending.” The recusal rules were motions brought before the court by the Wisconsin Realtors Association and Wisconsin Manufacturers & Commerce. They were hardly “pushed through” – petitions were brought before the court (the WRA petition was pending for a while), briefs were filed, a public hearing was held, a vote was taken, and four justices went one way, three the other. Moreover, the phrase “written by lobbying interests” is loaded. The petitions from WRA and WMC covered campaign activities by WRA, WMC, and any other organization that gets involved in judicial elections (say, the Wisconsin Education Association Council). Second, there was also a petition before the court by the League of Women Voters. The court heard testimony from the Wisconsin Democracy Campaign and the State Bar of Wisconsin. All three of these organizations – LWV, WDC, and the State Bar – are also “lobbying interests” in that they lobbied the court to adopt a particular position, or in that they lobby the legislature and generally advocate particular public policies.

At another point, Justice Bablitch asserted that the court “began to catch political hell for” their votes in favor of the WRA and WMC petitions:

By way of evidence, Bablitch pointed to a Dec. 4 opinion column in the Wisconsin State Journal written by Justice Patience Roggensack explaining her vote. The column was in response to numerous newspaper editorials blasting the adoption of the rules, which many equated with putting justice up for sale. ‘Normally a justice would not do that unless they were feeling the political heat,’ Bablitch says.

This statement fails to recognize that Justice Roggensack has been an active participant in public fora regarding the court and elections. For instance, Justice Roggensack delivered an address on judicial independence to the American Constitution Society’s Milwaukee chapter that was later reprinted at 91 Marq. L. Rev. 535. A year later, she met with the board of Common Cause in Wisconsin. Justice Roggensack’s editorial is more likely part of her ongoing effort to contribute to the public conversation about the court, not a response to diatribes from the editorial boards. Frankly, the four members of the majority have taken flack by the bucket from the editorial boards for a while now, and probably aren’t surprised when they are criticized yet again.

The greatest flaw with the Capital Times’ story is that it quotes no one supportive of the majority. It quotes Justice Bablitch, who endorsed the opponents of Justices Gableman and Ziegler, and whose rival petition the majority rejected. The second pundit interviewed is Andrea Kaminski, executive director of the League of Women Voters–Wisconsin, i.e., another petition loser. The third pundit interviewed was retired Justice Janine Geske, a member of the Law School’s faculty. She has generally stayed neutral in her comments thus far, and here suggested merely that the matter should have been referred to a study committee. Still, all three sources interviewed by the Capital Times’ reporter were opposed to the majority’s action – not one source was quoted defending the majority.

All of us, as members of the bar and more generally as citizens of this great state, should care about the doings of our Supreme Court. These are interesting days, and we should follow the developments at the court. But we should also remember that the court has gone through interesting days before, and that strong opinions stem from the strong issues the court must tackle in its service to our state.