The Destruction

The Destruction of the Wisconsin Supreme Court

BY LINCOLN CAPLAN

Last week, the United States Supreme Court upheld a Florida judicial rule that prohibits candidates for election to state judgeships from personally soliciting money for their campaigns. “Judges are not politicians,” Chief Justice John G. Roberts, Jr., wrote in the majority opinion in the 5-4 decision, “even when they come to the bench by way of the ballot.” He went on, “Simply put, Florida and most other States have concluded that the public may lack confidence in a judge’s ability to administer justice without fear or favor if he comes to office by asking for favors.”

There is no need for “may” in that sentence. In many of the thirty-nine states that elect judges, a dramatic rise in campaign contributions and related spending has caused a well-documented erosion of public confidence in state courts. The Supreme Court’s decision advanced the cause of fair courts. But it addressed only a tiny part of the problem that money and politics have created in American justice. A decision the same day by the Wisconsin Supreme Court provides an illustration of how destructive the problem can become.

Under a newly approved state constitutional amendment, which ended the practice of having the court’s most senior justice serve as chief, the justices chose their chief justice for the first time since the court was created, in 1852. By a vote of 4-3, reflecting the Wisconsin court’s split between conservatives and others, they picked Patience Drake Roggensack, a conservative who has been on the court for a dozen years. They ousted the liberal Shirley S. Abrahamson, on the court for thirty-nine years and, as chief justice from 1996 until last week, the longest-serving chief in state history.

Wisconsin was one of five states that picked chief justices solely on the basis of seniority. It is now one of twenty-three states where justices select their chief. In principle, the shift is easy to defend, but the haste with which the conservatives applied it reveals the partisan nature of the switch. Last week, as soon as the state government certified the amendment’s passage, the conservatives voted for the change by e-mail, before the court had agreed on a procedure for implementing the amendment, and without the participation of the three other justices.

Abrahamson challenged the implementation in federal court, on grounds that the amendment contains no language that it is to be applied retroactively. Having been reëlected to a ten-year term in 2009, she contends that there was no vacancy to be filled and that she properly holds the office of chief justice. A federal district-court judge is scheduled to hear arguments about her claim on May 15th.

This is the latest drama in a decadelong saga that, largely through money-fuelled and often nasty judicial elections, has intensified the turn of the Wisconsin Supreme Court from a congenial, moderately liberal institution into a severely divided conservative stronghold. More to the point, the elections have reduced it from one of the nation’s most respected state tribunals into a disgraceful mess.

Even the ludicrous parts of the story have serious consequences. In an unresolved 2012 complaint of misconduct by the Wisconsin Judicial Commission against Justice David T. Prosser, Jr., one count involves his “tendency towards a lack of proper decorum and civility by telling the Chief Justice”—then Abrahamson—“in the presence of other Justices, that ‘you are a total bitch.’ ” The other count involved Prosser putting his hands around the neck of Justice Ann Walsh Bradley. (The complaint quotes her as saying that he “put his hands around my neck, holding my neck as though he were going to choke me.”)

Prosser is one of the court’s four conservatives. Abrahamson and Bradley are liberals, in the minority with a more moderate justice. The choking incident came at the end of a discussion “which rapidly became more heated,” the complaint said, about when the court would announce a just-made decision in which the conservatives had prevailed 4-3. The conservatives, Bradley said later, were “demanding that an after-hours press release be immediately issued.” The announcement came the next day, in June of 2011.

It was about a historic ruling effectively upholding a new state law called a “budget-repair bill,” part of Governor Scott Walker’s anti-union crusade (which William Finnegan reported on for The New Yorker). In a state with a proud union tradition, the law gutted the collective bargaining rights of public employees. The decision ended a bruising legal fight that helped make Walker, with his brand of extreme conservatism, Rush Limbaugh’s favorite for the Republican Party Presidential nomination in the 2016 election.

A year later, after the complaint against Prosser was lodged and, by law, directed to the Wisconsin Supreme Court, Prosser filed motions for recusal of every other member, on the grounds that each was a material witness and that two had reported the conduct that led to the complaint. Eventually, all of the other justices recused themselves except N. Patrick Crooks, who invoked something called the rule of necessity (“where all are disqualified, none are disqualified”) as the main reason that he would not recuse himself. The court still lacked a quorum of four, which left the Prosser case in limbo.

A reader of the recusal opinions might get the impression that this embarrassing folly had an uplifting ending, because each justice expressed a commitment to preserving the public confidence that Wisconsin judges will be impartial. But, by then, the conservatives on the court had eviscerated its standard for recusal so that, even if a justice is not, or appears not to be, impartial, he need not disqualify himself. A justice is not required to disqualify himself from a case even when one of the lawyers or the parties made a campaign contribution to him or an independent expenditure on his behalf during an election.

Patience Drake Roggensack, now the chief justice, wrote for the conservative majority in a 4-3 vote in favor of the rule, “We elect judges in Wisconsin; therefore, judicial recusal rules have the potential to impact the effectiveness of citizens’ votes cast for judges. Stated otherwise, when a judge is disqualified from participation, the votes of all who voted to elect that judge are cancelled for all issues presented by that case.”

Alternately, the votes are tainted when a judge who should be disqualified is not. As a dissent in the recusal case put it, “A fundamental principle of our democracy is that judges must be perceived as beyond price.” But the conservatives on the Wisconsin court rejected that principle and put the matter beyond the reach of the court. Again 4-3, they held that a justice has the sole authority to decide whether to recuse himself.

The discredit to the court caused by the toothless recusal rule is now unmistakable, as it faces the most controversial legal matter in the state since the budget-repair/collective-bargaining case. It is about what is known as the second John Doe investigation.

The first, initiated in 2010 by the district attorney in Milwaukee County, about campaign-related activities of Scott Walker when he was the Milwaukee County Executive and, later, running for governor, led to criminal convictions of six of his aides, associates, or appointees, for embezzlement, doing campaign work on county time, and similar crimes. The second, launched in 2012, eventually included among the prosecutors the district attorneys from four other counties, the agency that administers state elections and ethics laws, and a lead special prosecutor, who made a point of identifying himself as a Republican who had voted for Walker.

John Doe investigations are carried out under a cloak of secrecy to protect those never charged with a crime. Their purpose is to determine whether any crimes have been committed and, if they have, by whom. According to the New York Times, “Prosecutors in Wisconsin assert that Gov. Scott Walker was part of an elaborate effort to illegally coordinate fund-raising and spending between his campaign and conservative groups during efforts to recall him and several state senators” in 2012. Under a state law, candidates and so-called independent groups are prohibited from closely coördinating with each other, for example, by sharing how they use advertising about candidate positions on key issues in an election.

With conservative political organizations under scrutiny, Walker petitioned the Wisconsin Supreme Court to decide whether state law justified the probe. Last December, the court agreed to hear the case and took the unusual step of scheduling oral argument over two days instead of one. Then it took a more unusual step and cancelled the argument, saying that it plans to rule on the matter based solely on briefs submitted in the case.

The justices have yet to respond to a motion submitted under seal by the special prosecutor arguing that one or more of them must recuse themselves because of conflicts of interest in the case—and, perhaps, that the case should be decided by the state’s intermediate appeals court. It is understood that he named the four conservative justices. Wisconsin Club for Growth and Wisconsin Manufacturers & Commerce are parties in the case, as the conservative political organizations that joined Walker in asking the court to review the investigation. Since 2007, they have spent almost eight million dollars to elect the conservative majority of the Wisconsin Supreme Court. They have been central players in turning Wisconsin into solid evidence of how judicial elections corrode public confidence in state courts.

Under the customary recusal standard, the justices would grant the special prosecutor’s motion: their impartiality can indisputably be questioned. But, with the recusal rule the justices adopted, which allows them to hear cases involving campaign donors, and each to make his own recusal decisions, it is not clear what they will do. Some distinguished legal ethicists insist that the justices must recuse themselves even under their rule. In a friend-of-the-court brief, the scholars said, “Recusal is mandatory where there is a serious risk of actual bias based on objective considerations.” Wisconsin Manufacturers & Commerce, as it happens, was one of the business groups that drafted the court’s recusal rule.

The Wisconsin Club for Growth and its treasurer and leader, Eric O’Keefe, have brought a federal case against the John Doe probe. Their petition describes them as “political activists who brought suit to enforce their First Amendment rights after they were targeted for abuse and intimidation by a rogue district attorney’s office in its long-running investigation of Governor Scott Walker, his associates, and supporters of his policies.”

A year ago, they persuaded a federal district-court judge in Wisconsin to halt the probe “and permanently destroy all copies of information and other materials obtained through the investigation.” The judge held that the First Amendment forbids penalties for coördination between political campaigns and groups like Wisconsin Club for Growth, and, in addition, that it forbids any effort by a state to learn what kind of coordination occurred.

The U.S. Court of Appeals for the Seventh Circuit, in Chicago, immediately stayed that part of the order and, last September, a unanimous panel of three judges overturned the ruling. Frank Easterbrook, a conservative who is one of the country’s most respected judges, wrote the opinion. Calling the lower court’s decision “imprudent” and “unnecessary,” he said that “the policy against federal interference in state litigation is especially strong when the state proceedings are criminal in nature.”

He also emphasized, “No opinion issued by the Supreme Court, or by any court of appeals, establishes (‘clearly’ or otherwise) that the First Amendment forbids regulation of coordination between campaign committees and issue-advocacy groups—let alone that the First Amendment forbids even an inquiry into that topic.” The U.S. Supreme Court is now considering whether to weigh in.

When addressing a case like the John Doe inquiry, with the election of a controversial governor and now an undeclared Presidential candidate at its core, the Wisconsin Supreme Court should be seen as above the fray, beyond price, and wholly independent. Instead, contrary to the ideal that John Roberts described in the Florida case, all of the Wisconsin justices look a lot like politicians, in particular the conservatives, who came to the bench with the support of powerful and aggressive political groups. Those justices’ integrity is compromised, as plainly as if they had personally solicited every dollar that helped elect them—and that helped drag the standing of their court so low.

But Roberts’s view about the difference between judges and politicians is fundamentally correct: “the role of judges differs from the role of politicians,” he wrote in the Florida case, and the Supreme Court’s “precedents applying the First Amendment to political elections have little bearing on the issues here.” In other words, while Citizens United v. Federal Election Commission, which unleashed enormous amounts of money in American elections, continues to loom large—and its “most severe impact,” according to the Brennan Center for Justice, may be felt in judicial elections—under the holdings in that case and others dealing with money and politics, Roberts wrote, “States may regulate judicial elections differently than they regulate political elections.”

Some judges, lawyers, and scholars who favor spending limits and limits on the participation of political groups in judicial elections have reacted enthusiastically to the ruling in the Florida case, saying that it provides reasons to hope that the Supreme Court would uphold those types of limits. The justices may be especially inclined to do so if they study the lessons from the Wisconsin Supreme Court’s ignominious saga.