The Wisconsin Supreme Court’s Caperton Moment

wisconsin-supreme-courtThe definitive litmus test for the impartiality and competence of the Wisconsin Supreme Court took the form of a lengthy opinion issued in response to the consolidated action State of Wisconsin ex rel. Two Unnamed Petitioners v. Peterson (2015 WI 85) by our state’s highest court on July 16, 2015. They failed this test miserably. In that one day, the court managed to squander the entirety of its judicial capital and to risk making itself into a tribunal that is an insult to the distinguished jurists who have come before them. This is about much more than the unjustified halting of a bipartisan probe into potentially severe violations of Wisconsin’s election laws — it is a prime illustration of the corrosive and corruptive influence that money has on politics and, in particular, judicial politics. These decisions are more misguided and indeed may possibly be more corrupt than the decisions reached by the West Virginia Supreme Court that led to the now-famous United States Supreme Court decision Caperton v. A.T. Massey Coal Co. (556 U.S. 868) and inspired John Grisham’s best-selling novel The Appeal.

Continue ReadingThe Wisconsin Supreme Court’s Caperton Moment

Wisconsin’s State Motto: Forward or Backward? The Potential Demise of Open Records Law

In 1851, the state of Wisconsin adopted the simple word Forward as its state motto. It’s a powerful word that has symbolized the State’s progressive history. Lately, though, it seems like we’ve been going backward rather than forward. Case in point: open records law.

Wisconsin’s open records law has been around since 1981. Embodied in sections 19.31-19.39 of the Wisconsin Statutes, the law begins with a broad declaration of policy: “all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.” Wis. Stat. § 19.31. The law “shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.” Id.

Open records law is consistent with transparency in government. Brett Healy, president of the conservative think-tank MacIver Institute, said, “Transparency in government is not a liberal or conservative issue, it is a good government issue. Taxpayers deserve access to government records, so they can keep politicians all across this great state honest and accountable.”

And the law has been used to do just that.

Continue ReadingWisconsin’s State Motto: Forward or Backward? The Potential Demise of Open Records Law

The Initial Appeal of Chief Justice John Roberts’ Dissent in Obergefell v. Hodges

b599a34c0d512e42e3f5277e172bbebcd745dd98Rainbows abounded on the morning of Friday, June 26, 2015, when the United States Supreme Court held 5-4 that same-sex couples have a constitutional right to marry and a right to have their legal marriages recognized in every state.

The Court’s decision in Obergefell v. Hodges was not unexpected. The divide in the Court, too, was not unexpected: Justice Anthony Kennedy wrote the majority opinion for himself, Justice Stephen Breyer, Justice Ruth Bader Ginsburg, Justice Elena Kagan, and Justice Sonia Sotomayor.

(An interesting side note: Justice Kennedy, a 1988 Reagan nominee, has authored all four of the major SCOTUS cases on lesbian, gay, bisexual, and transgender (LGBT) rights: Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and now Obergefall v. Hodges. As well, three of those cases were handed down on June 26—Lawrence on 6/26/03; Windsor on 6/26/13; Obergefell on 6/26/15).

When I first read the Obergefell decision, I found myself skeptical. Make no mistake: I fully agree with and welcome the holding. However, I was concerned about the Court’s reasoning. My first thought, upon reading the opinion, was to wonder why the Court did not base its holding more on the Equal Protection Clause, like Judge Richard Posner did in his opinion in Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014). That seemed to me to be the easiest argument. There is simply no compelling justification for the State to distinguish between opposite-sex and same-sex couples when it comes to marriage.

So, when I got to Chief Justice John Roberts’ dissent, it initially made some sense to me, and I could envision its appeal to many others.

Continue ReadingThe Initial Appeal of Chief Justice John Roberts’ Dissent in Obergefell v. Hodges