Feuding Supreme Court Justices Need a Break

Wisconsin Supreme Court. Photo by Mariiana Tzotcheva.

Wisconsin’s seven Supreme Court justices need this summer break more than ever. There won’t be an evening in which all seven roast s’mores over a lakeside campfire, trading term-ending memories.

Instead, the justices will soon step away from their Capitol chambers more divided and angry than ever.

Two recent signs of that raging four-to-three divide:

The four liberal justices just resolved legal bills resulting from a two-year fight over new legislative district lines in a way that conservative Justice Brian Hagedorn called a “mess.” And, in that case, Chief Justice Annette Ziegler 12 times accused the “court of four” majority of making up its own rules and not tolerating dissent.

That decision came days after the four-justice majority — Ann Walsh Bradley, Rebecca Dallet, Jill Karofsky and Janet Protasiewicz — renamed the State Law Library in honor of Lavinia Goodell, the state’s first woman lawyer.

What the majority forgot to note when they announced the change was that the library had been named for conservative icon and former Justice David Prosser, a Republican and former Assembly speaker whose four decades of public service ended with his 2016 retirement from the court. An ethics complaint that an angry Prosser once put his hands around Walsh Bradley’s neck was never resolved.

In the ruling that ordered six parties in the fight over the state’s new legislative districts to each pay $21,359 — half of which will be paid by taxpayers — to compensate national experts that drafted maps the court could have put in place, Dallet responded to the chief justice’s “court of four” taunts.

“At times we disagree, sometimes vehemently,” Dallet said. ‘But we remain a seven-member court even when we disagree. The majority vote rules, and the dissenting justices are welcome to voice their disagreement in separate writings.”

But dissenting in the legislative district lines case, Ziegler listed what she said were partisan decisions by the “court of four” that started shortly after Protasiewicz’s election in April 2023. Recounting the 2023-24 term, Ziegler said:

“[T]he court of four, in pursuit of partisan outcome-based decision making, silence the voices of their colleagues in their quest for power. Their actions portray a new court majority which appears unable to resist the allure of political control.

“They met repeatedly behind closed doors, in secret, over the protestations of their colleagues…to change longstanding court policies and procedures and in order to seize the power to administer the court system (a power which the constitution vests in the chief justice).

“The court of four made hiring and firing decisions without their colleagues’ input and in violation of this court’s rules. And, they have continuously changed this court’s internal operating procedures to further entrench their majority control over the court’s calendar and processes for handling cases, further silencing and restricting dissenting voices in the process.”

Hagedorn, joined by Ziegler and Justice Rebecca Grassl Bradley, specifically objected to the four-justice majority improperly hiring consultants.

Judges often rely on referees, expert witnesses and past testimony to decide cases, but Hagedorn said the role played by consultants – who could not be questioned over their work – was unprecedented and favored Democrats.

The four-justice majority “wanted [consultants] to recommend maps based upon their own notions of partisan fairness without being subject to any scrutiny,” Hagedorn said, adding:

“It eliminated the only politically neutral map submitted simply because it led to too many Republican-leaning seats, and saw fit to recommend only maps drafted with explicitly partisan motivations in one direction. And they did all of this without having to answer for their methodology or recommendations. Now they submit their bill without having to answer for their fees.”

Courts have been resolving fights over legislative district lines since 1964, according to the non-partisan Legislative Reference Bureau.

Writing for the majority, Dallet said, “In the end, it was not necessary for this court to adopt new maps… [T]he political process worked: The Legislature enacted new state legislative district maps and the governor signed them into law.”

Dallet thanked the consultants for performing an “important task, one that none of the parties could have performed: Not recommending any party’s proposal, but independently evaluating all the parties’ submissions according to the specific criteria the court announced.”

Time for summer chill, justices. Your election-year calendar next term could be even more challenging.

Steven Walters started covering the Capitol in 1988. Contact him at stevenscotwalters@gmail.com