State Supreme Court At War With Itself

A war of words is raging among the members of the Wisconsin Supreme Court. Evidence for this assertion is contained in two recent decisions.

In one of these, called Becker v. Dane County, the court majority upheld the ability of local health departments to issue orders aimed at reducing the spread of the COVID-19 pandemic. In her dissent, Justice Rebecca Grassl Bradley launched a vicious attack on the Dane County and Madison health commissioner (which I described in more detail last week), accusing her of assuming dictatorial powers.

Writing for the majority in Becker v. Dane County, Justice Jill Karofsky criticized Bradley’s attacks on the commissioner:

Finally, and most importantly, the dissent’s resort to disparaging a public servant——who has no opportunity to defend herself——is a poor substitute for legal argument. Such personal aspersions have no place in a judicial opinion. While the direct and implied contentions that a local health official is a tyrant, an autocrat, a dictator, and a despot are fantastical, they do real damage to the public’s perception of this court’s work. We must aspire to be better models of respectful dialogue to preserve the public’s confidence on which this court’s legitimacy relies.

In a footnote to a second case, Teigen v. WEC, outlawing drop boxes, Rebecca Bradley borrows and modifies Karofsky’s language in a footnote. (The punctuation is Rebecca Bradley’s):

“Finally, and most importantly, the dissent’s resort to [ad hominem attacks on the majority] is a poor substitute for legal argument. Such personal aspersions have no place in a judicial opinion. . . . [It] do[es] real damage to the public’s perception of this court’s work. We must aspire to be better models of respectful dialogue to preserve the public’s confidence on which this court’s legitimacy relies.”

In quoting, Karofsky, Rebecca Bradley makes two modification and omissions, changing the thrust of Karofsky’s complaint. The reference to the smearing of a public official disappears, to be replaced by a supposed “ad hominem attack.” Presumably this claim targets criticism contained in the dissent authored by Justice Ann Walsh Bradley:

The right to vote is a “sacred right of the highest character.” Yet the majority/lead opinion blithely and erroneously seeks to sow distrust in the administration of our elections and through its faulty analysis erects yet another barrier for voters to exercise this “sacred right.”

Whether one agrees with this or not, this is hardly “ad hominem.” She goes on to criticize the opinion:

Although it pays lip service to the import of the right to vote, the majority/lead opinion has the practical effect of making it more difficult to exercise it. Such a result, although lamentable, is not a surprise from this court. It has seemingly taken the opportunity to make it harder to vote or to inject confusion into the process whenever it has been presented with the opportunity.

Ann Walsh Bradley continues:

A ballot drop box is a simple and perfectly legal solution to make voting easier, especially in the midst of a global pandemic. But it is apparently a bridge too far for a majority of this court, which once again rejects a practice that would expand voter participation.

The majority/lead opinion’s analysis is flawed in three main ways. It expands the doctrine of standing beyond recognition, is premised on a faulty statutory interpretation, and without justification fans the flames of electoral doubt that threaten our democracy.

Whether one agrees or disagrees with these comments, they hardly fit the definition of an “ad hominem” attack, which refers to irrelevantly attacking the person or some aspect of the person who is making the argument rather than addressing that person’s argument or position.

Karofsky and Ann Bradley are not the only targets of Rebecca Bradley’s ire. Justice Brian Hagedorn, despite clearly being a conservative, gets it for not being enough of a purist in right wing dogma. When he notes that the court has “declined to fastidiously police the line between a permissible legislative grant of power and an impermissible delegation of legislative power,” she responds that “just because prior courts failed to uphold our constitution does not give this court license to perpetuate its dereliction of duty.”

Rebecca Bradley seems completely convinced that she and the right-wing legal community (or perhaps a portion of it) she is part of possess the only correct way of approaching legal questions and are perfectly justified with overturning institutions and arrangements that don’t conform to their understanding. Like her colleagues in the U.S. Supreme Court’s conservative majority, their belief that only they have the truth is a threat to democracy.