Supreme Court Shows Ugly Divisions

Last week, the Wisconsin Supreme Court ruled in favor of Gov. Tony Evers’ proposed redistricting maps, as the media reported. What they didn’t report was the extraordinary level of vitriol in the written opinions. No, the nastiness did not involve a division between the four conservative and three liberal judges, but among the four conservatives, with Justice Rebecca Bradley blasting Justice Brian Hagedorn and his majority opinion with repeated, rather personal attacks, in a concurring opinion also signed by Chief Justice Annette Ziegler and Justice Patience Roggensack, signaling their approval of Bradley’s blitzkrieg.

Bradley accused Hagedorn, who wrote the majority opinion favoring Evers, of operating like “a supreme court of one,” contending “he does not have the power” to do so. But in fact Hagedorn often has the only vote that counts, because the three liberals and three conservatives are so predictably at odds. Hagedorn, the former attorney for Republican Gov. Scott Walker who won his Supreme Court seat promising to be a strict constructionist, has done just that, while the other three conservatives are more likely to simply back Republican legal demands. As a result, Hagedorn has occasionally sided with the liberals, as he did in this case.

All of which seems to have frustrated the three conservatives, whose anger boiled over in Rebecca Bradley’s concurring dissent. She was particularly angry that six of the seven justices didn’t agree with Hagedorn’s approach, as the three liberals signed an opinion arguing that the continuing partisan advantage for Republicans should have been addressed by the court, but went along with Hagedorn’s approach as the least objectionable alternative.

The three conservatives’ anger also arose from the fact that Evers had outfoxed the Republicans by offering political maps that moved less people into new districts as a way to live up the court’s November ruling that it would favor the maps with “the least change” from the 2010 maps. After seeing this, Wisconsin’s Republican congressmen asked to submit a new map that featured less voters being moved into new districts, but Hagedorn and the three liberals voted against this. If they had allowed this, Evers might have asked to submit an amended map, as would Republican legislators, and the process could have gone on and on.

The main dissent was written by Zieger, who called Hagedorn’s ruling “nothing more than an imposition of judicial will,” and “an exercise of judicial activism… to favor the big city interests over more rural identities…carving up Wisconsin communities for the stated and unstated interests of the Governor.” The charge that Hagedorn, a Federalist Society member who worked under both a Republican Attorney General and governor, is out to help the Democrats, was probably quite amusing to him.

Yet the charge was repeated, and then some, in Bradley’s heated concurring dissent, which accused the Hagedorn majority of “blatantly political policy making… elevating their subjective policy preferences over the law… fulfilling the fears of many citizens concerned about a judicially-partisan outcome.” The decision, she went on, is based on a “corrupt” view of the court’s past decision, a “perversion” traceable to “Justice Hagedorn’s misunderstanding” which “infects the majority opinion.”

Hagedorn seemed to float above all this angst, noting relevant facts, quoting decisions and avoiding any attacks. “The Governor’s map moves the fewest number of people into new districts,” he noted. “It is not a close call.” Evers proposal for congressional districts moved 60,041 fewer people than the next closest submission, by the state’s Republican Congressmen. And while his state senate maps moved 1,958 more people out of districts than the Legislature’s maps, his Assembly maps moved 96,178 fewer people than the Legislature did. Since the two maps must work together, with three Assembly seats “nested” in each Senate district, this made Ever’s maps vastly superior in terms of creating the least change.

“We also conclude that Governor Evers’ proposals satisfy the requirements of the … Wisconsin Constitution,” Evers noted, whereby “all districts are contiguous, sufficiently equal in population, sufficiently compact, appropriately nested, and pay due respect to local boundaries.”

The maps also meet the federal requirement that districts be as equal in population as possible, he found. “The Governor’s map comes close to perfect equality… the total deviation between the most and least populated districts is two persons.”

Finally, Hagedorn ruled that Evers approach, which increased the number of majority black districts in Milwaukee County from six to seven was in compliance with the federal Voting Rights Act (VRA). By contrast, the Legislature’s proposal would have cut the number of majority black districts to five, including one with a Black voting age population of 73.28%, “a level some courts have found to be unlawful ‘packing’ under the VRA,” Hagedorn noted.

He also cited evidence presented to justify more Black districts: “Over the last decade, the Black population in Wisconsin grew by 4.8% statewide, while the white population fell by 3.4%, and “in Milwaukee County… the Black voting age population increased 5.5%, while the white voting age population decreased 9.5%.”

The main dissent by Ziegler made much of the fact that Evers’ districts were not exactly equal in population, but never noted they varied by only two voters. As Hagedorn wrote, “The mathematically ideal district contains 736,714.75 persons, and the Governor’s districts have either 736,714 people, 736,715 people, or 736,716 people… According to one source cited in briefing, following the 2010 census, 14 states implemented maps with greater than single-person deviations: Arkansas (428), Georgia (2), Hawaii (691), Idaho (682), Iowa (76), Kansas (15), Kentucky (334), Louisiana (249), Mississippi (134), New Hampshire (4), Oregon (2), Texas (32), Washington (19), and West Virginia (4,871). If the law is clear that a two-person deviation (or more) is unacceptable, then nearly a third of states with more than one congressional district have apparently not gotten the message.” Ziegler offered no answer to this.

Ziegler, and the concurring opinions by Roggensack and Bradley, devoted most of their writing to attacking Evers for creating seven majority-Black districts in Milwaukee County, with Roggensack accusing the court of “racial gerrymandering.” They had no criticism of the Legislature for reducing the number of majority-Black districts.

The concentration on this one issue suggests the dissenting justices felt this was the weakest part of the Evers map under the law, and all three invited the U.S. Supreme Court (whose interpretation of the Voting Rights Act has changed markedly over the last 15 years) to review this case. But the mapping of Milwaukee County’s districts also had an impact beyond this, “cascading” through the rest of the state, as Hagedorn wrote.

“Although the Legislature’s proposed maps may move fewer voters in some Milwaukee-area districts, the Governor’s proposed maps move fewer voters throughout the rest of the state, leaving 13 assembly districts outside Milwaukee entirely unchanged from their prior configurations. The Legislature does not explain why we should reject the Governor’s map for its changes to Milwaukee, while accepting the Legislature’s proposal to change districts even more elsewhere.”

Hagedorn’s pointed comment about the Legislature not explaining this could have been directed at the dissenting justices, but he cooly avoids the kind of attacks that Ziegler and especially Bradley direct at him.

The growing personal friction between the three conservative women justices and Hagedorn is an opportunity for the three liberal justices Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky, who would be wise to avoid attacking Hagedorn in their opinions. Personal relationships, as the history of the U.S. Supreme Court has shown, can have some impact on the decisions made by justices.

What is most remarkable about this decision is just one sentence, where Rebecca Bradley informs us that her fellow justices Roggensack and Ziegler signed on to her dissent. The latter two could have simply stood behind their own opinions, which covered all the legal issues in this particular case, but they apparently wanted to approve Bradley’s virulent attacks on Hagedorn.

Bradley has quickly become the most radical conservative activist on the court, whose readings of the law seem to give her unlimited license and whose intemperate language could be used in law schools to illustrate the kind of raving rhetoric a judge should avoid. Bradley’s attack on Hagedorn includes comparisons to animals, deriding the majority opinion as “a wolf that does not even try to masquerade as a sheep” and beginning her opinion with a quote from Aristotle that sets up her attack against Hagedorn, that “passion influences those who are in power, even the very best of men,” who may become like “a wild beast.”

It takes one to know one.