by Rick Unger, The Policy Page, Forbes, June 15, 2011
Yesterday, the Wisconsin Supreme Court, in a 4-3 ruling, overturned the lower court decision that had barred implementation of Scott
Walker’s anti-collective bargaining law on procedural grounds.
Walker’s anti-collective bargaining law on procedural grounds.While Walker’s law will now take effect, this is the least of the problems revealed by the high court’s ruling.
After all, the anti-collective bargaining legislation was going to become law, one way or another. Had the Supreme Court affirmed the lower court ban and struck down the law, Walker would have simply included the legislation in his new budget and pushed it through once again. Only this time, there would not have been the procedural snafu that has left the legislation hanging in limbo as it worked its way through the state court system.
However, the decision of the Wisconsin Supreme Court revealed something far more shocking than the ruling which went against the supporters of collective bargaining. It revealed, by way of written opinion, a now ‘out in the open’ battle between the members of the court wherein the minority opinion bluntly and directly accused the majority of fudging the facts to reach the decision they had already determined they wanted to reach. The minority opinion further alleged that the majority was driven by political motives rather than the desire to deliver a fair and judicious opinion.
In the world of the law, this is beyond huge. This is gargantuan.
Of course, it is no secret that high courts will, from time to time, give us reason to believe that politics might be at work. However, members of such a court use extraordinary care and caution to avoid calling out a fellow justice for doing what is considered the unthinkable.
The notion that a minority opinion would level a charge of judicial cheating against brother and sister members of the court, in an opinion that will now become part of the Wisconsin judicial body of legal authority, is positively remarkable. I’ve read more cases in my life than I could possibly count and never-and I mean never- has anything I’ve seen so much as approached what I read in this case.
And the fact that these charges were leveled in an opinion concurring with the minority written by the Chief Justice of the Court just makes this all the more astounding.
"In a fiery dissent, Supreme Court Chief Justice Shirley Abrahamson wrote that justices hastily reached the decision and the majority “set forth their own version of facts without evidence. They should not engage in this disinformation.”Abrahamson also said a concurring opinion written by Justice David Prosser, a former Republican speaker of the Assembly, was “long on rhetoric and long on story-telling that appears to have a partisan slant.”
Astounding. Truly ‘jaw dropping’, mouth gaping, astounding.
When the Chief Justice of the highest court in the state feels moved to accuse those in the majority of recreating the facts to meet a desired decision, this is a court that is in extraordinary crisis.
And if Chief Justice Abrahamson is correct in her assessment, Wisconsin now finds itself in a period where their highest court decisions can no longer be relied upon when assessing the law.
Every state in the nation – with the exception of Louisiana who retains its roots in the French Napoleonic system- bases its law in the concept of stare decisis. This means that when the court makes law through their decisions, other courts will strive to remain consistent with that law by following the judicial precedents set so that people will never find themselves confused as to the likely outcome of their actions.
This is why changes in American law – other than those brought about by legislation- happen very, very slowly. Consistency in the law is one of the fundamental goals of our system.
However, when the Chief Justice of the State’s highest court accuses the majority of highly unethical behavior and political motives when making law, and does so in the writings found in a decision of the court, there is no court in the state – nor citizen seeking to follow the laws of the state – who can give credence and credibility to the high court’s rulings. Every ruling of the Wisconsin Supreme Court, so long as it is composed of its current Justices, will result in precedents that are instantly suspect due to the charges that have been levied by members of the court.
While the State of Wisconsin has a lot on its plate in the recall department, I’m afraid they now have little choice but to consider taking a look at some of their Supreme Court Justices for similar action.
Not because the court handed down a ruling that will make people unhappy – but because the people of Wisconsin now have every reason to believe that their Supreme Court has been corrupted and their opinions subject to invalidation.
Make no mistake. This is not about a judicial philosophy with which I might disagree. Reasonable, learned judges can – and often do – apply the law to a fact situation and come up with different opinions and they do so in the utmost of good faith and their best understanding of the law.
However, the minority opinion issued yesterday in the Wisconsin Supreme Court did not charge mistaken application of law. The opinion charged perversion of the facts and the law to meet a desired result.
If this is true, this is court corruption at its absolute worst and the people of Wisconsin cannot permit this to stand.
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