Much of the reporting on the divisions within the Wisconsin Supreme Court has confined itself to the bizarre behavior of Justice David Prosser, who was accused by a fellow Justice of holding her in a chokehold during a heated argument. However, this focus on the sensational diverts attention away from the nature and substance of the Court’s 4-3 decision to legalize the process by which the Republican-controlled legislature withdrew collective bargaining rights from state employees.
A professor at Thomas M. Cooley law school, Brendan Beery, wrote this in his blog: “Generally speaking, higher courts—“appellate courts”—exist to correct legal mistakes made by trial courts. There are no juries or witnesses or evidentiary exhibits in appellate courts; appellate courts are not fact-finders—juries are. Since appellate courts don’t see witnesses or look at all the physical evidence, they generally don’t second-guess trial courts’ findings of fact. …
“In the Wisconsin case, the state’s Supreme Court—the state’s highest appellate court—converted itself into a trial court and made findings of fact without even taking evidence. On top of that, none of the parties had even asked the Supreme Court to act as a finder of fact; the court did that on its own—just for giggles. This was an extraordinary breach of judicial canons and so mangled the basic tenets of our court structure that it calls into question not just the motives of the court’s members, but also their intelligence.
“The court, having exceeded all bounds of its own proper role, went on to accuse the trial judge of exceeding her authority by prohibiting the publication of what she deemed to be an unconstitutional law before it could be enforced. …
“All of these infirmities—procedural mischief, the mangling of fundamental precepts of American law, the invention of facts without the taking of evidence, the failure even to address the most fundamental legal question at issue in a case—all of these are telltale indicators that something terribly untoward, and usually singularly political—is afoot.”
Beery points out that many of the judges on the court are politicians rather than jurists. Talking Points Memo recently shed some light on how this politicization took place. “The court has seen a tremendous amount of transition over the last five to seven years, and it’s moved decidedly right,” a former Supreme Court clerk explained. “It used to be a lot of these justices weren’t elected to open seats, they were appointed and came in as sort of consensus candidates. They went through a process where it was much — they couldn’t claim a mandate. But now you’ve got justices, a series of them…they’ve all been elected, and they’ve all come in feeling that was a mandate for them.”
Prosser, although now a judge, was a Republican legislator for 18 years, including six years as GOP minority leader and two years as Speaker. He was appointed to the court by Republican Governor Tommy Thompson in 1998. “You’ve got Prosser who is very bright, but is still a politician,” said the former clerk, “and it goes back to his time in the state legislature, which is a win-at-all-costs mentality.”
What all this means is that the legitimacy of the Wisconsin Supreme Court itself is called into question. As the New York Times pointed out about its federal counterpart: “The court cannot maintain its legitimacy as guardian of the rule of law when justices behave like politicians.”
But the worst thing about this partisan legitimization of the anti-union law is that it validates open contempt for due process. The blog “Uppity Wisconsin” reports that the City of Milwaukee administration — under a Democratic mayor, Tom Barrett — has gone even further than the law allows and has already “terminated” two small union locals representing police support staff. While the law provides for onerous annual “re-certification” votes by union members to retain their bargaining rights, there is nothing in it about removing a union before any election has been held.
A member of one of those two locals commented: “The city bargained with us in good faith when we passed the contract in March of this year, and then refused to take any phone calls or return any from the union president after that. Now we’ve been terminated.”
As well as working to recall Republican state senators, it’s time for Wisconsinites to call Democratic municipal leaders to account for their role in undermining state union rights.