Joseph A. Ranney says his interest in almost two centuries of Wisconsin’s legal system stands on two things. One is as simple as this: “I love history.” The other is the large amount of time he has spent reading old volumes of Wisconsin legal records as a student and as a lawyer.
His passion for the subject has made Ranney, the Adrian P. Schoone Fellow in Wisconsin Law and Legal Institutions at Marquette University Law School and a partner with the firm of DeWitt Ross & Stevens in Madison, an expert on Wisconsin’s legal history. His most recent book, Wisconsin and the Shaping of American Law, was published in 2017 by the University of Wisconsin Press.
During an “On the Issues with Mike Gousha” program in the Lubar Center in Eckstein Hall on Wednesday, Ranney talked about trends in Wisconsin’s legal history and some of the important and sometimes colorful episodes in that history, going back to the 1820s when Wisconsin was a territory and it was a challenge to get people to respect what judges did.
Overall, Ranney said Wisconsin has played an important role in American legal history and has earned its reputation for judicial independence. “We have followed our own path,” Ranney said. “We have kind of marched to our own legal drum over the years.”
That includes times when Wisconsin was ahead of national legal trends and times when the state put itself behind the trends. Times when the state was ahead that Ranney mentioned included the state Supreme Court’s resistance in 1850s to federal pressure to recognize laws requiring escaped slaves to be returned to their home states and decisions in the 1910s that allowed progressive reforms born in Wisconsin to move forward. Times when the state trailed trends included the 1960s, when Wisconsin was one of the last states to approve no-fault divorce.
Ranney recounted how courts and judges had to show backbone in establishing the legitimacy of the legal system in the state. He said the state Supreme Court had a crisis of legitimacy in the 1850s when the outcome of a race for governor was challenged by the candidate who was initially set as the loser but who said fraudulent votes were counted. The posted winner said the court had no place in settling this. The court stuck to saying the issue was appropriate business and it found that the challenger was correct. The challenger became governor and people widely accepted the court as a fair and valid venue for ruling on disputes.
Ranney said concerns about partisanship influencing actions of the Wisconsin Supreme Court are far from new. Disputes over the political leanings of justices go back to the 1850s, he said.
But such concerns have risen afresh in recent years. Ranney pointed to the 1998 decision by the court that publicly-funded vouchers that allow parents to send their children to private schools are constitutional. He called the decision “the opening of an age of vitriol” for proceedings of the court.
One measure of how the court has become more split is the decline in unanimous decisions. In 1940, Ranney said, 92 percent of Wisconsin Supreme Court decisions were unanimous. In 2010, only 17 percent of the court’s decisions were unanimous.
Gousha asked if it is possible a new framework will emerge for consensus in the work of the court. “I hope so,” Ranney said.
To read a piece by Ranney, “Wisconsin’s Legal Giants,” from the Fall 2015 issue of Marquette Lawyer magazine, click here.
Publication of Ranney’s new book was marked with a Law School News story in the Fall 2017 Marquette Lawyer magazine (see page 5). To read it, click here.
And to view video of the hour-long “On the Issues” program, click here.