Who Are State Supreme Court’s ‘Rogue Members’?

The April election saw the victory of Janet Protasiewicz to the Wisconsin Supreme Court. She was widely expected to join Ann Walsh Bradley, Rebecca Dallet, and Jill Karofsky as one of the court’s “liberals,” giving that group a working majority of four votes on the seven-member court.

Based on their decisions and opinions over the years I would characterize the resulting makeup of the court as four pragmatic liberals, two doctrinaire conservatives—Rebecca Bradley and Annette Ziegler—and one pragmatic conservative–Brian Hagedorn. Normally, the court majority would be empowered to decide how to organize the court.

An article in the Journal Sentinel listed several changes made by the new majority:

The justices voted… to change the court’s rules, including the creation of a new committee composed of conservative Chief Justice Annette Ziegler and two justices picked by the court’s liberal majority members.

The liberal justices voted to shift powers from Ziegler to the new committee, in some cases eliminating the chief justice as the sole decisionmaker and instead assigning such jobs to the committee, including appointments to the Wisconsin Judicial College, overseeing the state courts director, picking members of state-level judicial committees and the planning and policy advisory committee, and reviewing the court system’s budget, among other matters.

This raises several questions. The first is why is Ziegler Chief Justice, contrary to the election result which effectively gave power to a liberal majority?

The apparent answer to the question lies in the court’s history. In April of 2015, voters approved an amendment to the Wisconsin Constitution that said that “the chief justice of the supreme court shall be elected for a term of 2 years by a majority of the justices then serving on the court.” Previously, the longest-serving justice served as Chief Justice, which was Shirley Abrahamson.

Rather than wait until the start of a new court session in August, and reflecting animosity to Abrahamson, the court’s conservative majority refused to allow her to serve out the court’s current session. Instead, it immediately elected then-Justice Patience Roggensack as Chief Justice to take effect on May 1, 2015.

This established very odd timing in electing a chief justice. On March 16, 2023, the Wisconsin Supreme Court announced that “the Wisconsin Supreme Court has elected Chief Justice Annette Kingsland Ziegler to serve a second two-year term as chief justice, effective May 1, 2023.”

The March announcement of Justice Ziegler’s election to Chief Justice came right in the middle of the election process to choose Justice Roggensack’s successor on the court. The justices voted a few weeks after the Spring Primary and shortly before the Spring General Election. By May 1 effective date, the election result would have been known.

I am not aware of any government body, other than the Wisconsin Supreme Court, that follows this practice in which the outgoing body elects a leader shortly after a new member is chosen but before that new member joins the board. Normally choosing the leaders of the body are among the first orders of business following the seating of the new member.

A second question is why did the new court majority feel compelled to trim Ziegler’s powers? The ever-interesting Steven Walters suggests in an Urban Milwaukee column that it is revenge for the vindictive treatment of Abrahamson. Referring to Abrahamson as a “beloved mentor to the four justices pushing for change,” Walters says that “somewhere, the four justices must have thought, Shirley Abrahamson is smiling.”

I would suggest another motivation: that the new court majority doesn’t trust Ziegler and expects that she will do her best to sabotage them. According to Dallet, Ziegler was asked on May 19 and June 23 to schedule a conference in August to discuss administrative changes, but the chief justice refused.

This perception is supported by statements from Ziegler herself who claims that the changes the majority have adopted can only happen “when seven members of the court convene with an agenda prepared by the Chief Justice and at a time set by the Chief Justice during the court’s business year, which is September-June.”

The state constitution does not support Ziegler’s claim. It says that the “chief justice of the supreme court shall be the administrative head of the judicial system and shall exercise this administrative authority pursuant to procedures adopted by the supreme court” (Article VII, Section 4). In other words, the chief justice is the servant of the court, not its boss. There is nothing here that would prevent a change in previously adopted procedures if desired by the majority of the justices.

Chief Justice Ziegler did not take the court majority’s actions well. She released a statement that said the move amounted to “four rogue members of the court (meeting) in a secret, unscheduled, illegitimate closed meeting.”

In a series of three tweets, Rebecca Bradley seconded Ziegler’s “temper tantrum”:

Ann Bradley & her cabal of extreme leftists-Rebecca Dallet, Jill Karofsky & Janet Protasiewicz-met in secret, without their colleagues, to usurp the power the people gave the Chief Justice. They have no respect for the people they are supposed to serve or for the constitution. 1/3

Behind closed doors, four rogue justices violated court traditions and procedures to rewrite the rules justices followed for decades.  When Rebecca Dallet called the rule of law “garbage” she meant it.  2/3

Nothing will stand in the way of their blatant power grab designed to advance their political agenda. They sully the institution of the judiciary. 3/3

Contrary to Rebecca Bradley, Dallet did not call the rule of law “garbage.” During her election, she called the claim by an election opponent to support the rule of law “garbage” because he had joined a group illegally blocking access to an abortion clinic.

It is intriguing that both Rebecca Bradley and Ziegler felt compelled to use the word “rogue” to describe members of the new court majority. When not referring to elephants, that term generally refers to individuals who go their own way, rejecting the majority. But it is Rebecca Bradley and Ziegler who are rejecting the majority.

In their opinions, both Ziegler and Rebecca Bradley leave the impression that they believe the only true interpretation of the law is theirs, and that there is something wrong with justices who disagree with them. They devote considerable ink to hectoring justices who disagree with them.

An example is Ziegler’s dissent in Trump v. Biden, one of the many cases in which Donald Trump tried to reverse his defeat in the 2020. Trump’s lawyers argued that absentee ballots in Milwaukee and Madison should be thrown out if they were submitted using drop boxes. The majority decision, written by Hagedorn, and joined by Walsh Bradley, Dallet, and Karofsky, rejected Trump’s argument, concluding it should have been made before people voted, not after.

In her dissent, Ziegler argued that “the majority claims the petitioners were too late, should have acted earlier and therefore, the court is neutered from being able to declare what the law is. The majority basically reiterates respondents’ soundbites.” She does not recognize that her position would open the door to every election loser to claim that something about the administration of an election was illegal and that voters who cast their ballots under that rule should have their votes thrown out.

It is notable, I think, that strategies aimed at controlling the actions of one’s successor have become increasingly popular among Republicans who lose elections. Examples include Trump’s attempt to reverse his loss in the 2020 election, Governor Scott Walker’s use of the time gap between his defeat and Tony Evers’ inauguration to sign a series of laws restricting Evers’ powers as governor, and the refusal of a member of the Department of Natural Resources to leave the board when his term was up.