Wisconsin Supreme Court Chief Justice Shirley Abrahamson appears to have lost not only the confidence of some Justices on the Court, but the ability to lead the Court.
The latest incident, in which (liberal) Justice Ann Walsh Bradley charged with fist raised at (conservative) Justice David Prosser, and then made a false allegation that Prosser used a chokehold on her, is a low point in the annals of judicial history, at least in recent memory.
Abrahamson apparently has decided that she is incapable of keeping things under control, because she now is proposing the judicial equivalent of an open meetings law, in which the deliberations of the Justices would be open to the public. As reported by JSOnline:
Chief Justice Shirley Abrahamson is laying out her plan to make Supreme Court deliberations public.
Responding to a recent physical altercation between two justices, Abrahamson is seeking to raise ebbing public confidence in the court….
Right now, administrative conferences on the court are open to the public but deliberations are not. Legal scholars have said it might be difficult to open them as Abrahamson has proposed.
The court will take up the proposals in Abrahamson’s memo on Sept. 15. In the memo, she says she wants to start a discussion and doesn’t necessarily endorse all the various options laid out:
* The presumption should be that all conferences are open, with all conferences held either in the court’s hearing room or in a more private location where the conference would be streamed to the public.
* The court should presume that conferences be open when the court considers which cases it will take.
* Court conferences could be taped and then released later after the cases have been resolved.
* An expert on conflict resolution could work with all of the justices individually.
I don’t claim to have surveyed every court in the nation, but I’m not aware of any appeals court where the deliberations (as opposed to the oral arguments and court proceedings) are open to the public.
The entire concept goes against the nature of appellate deliberations, where Justices should be able to improve their own legal analysis by testing that analysis in private with other Justices. Making such deliberations public is the surest way to lock Justices into positions, politicize issues, and ensure that robust legal debate does not take place.
Given the fiasco of the Wisconsin Open Meetings law, and the protests which disrupted the State Capitol, it is hard to see how making deliberations public will do anything other than inflame an already tense situation on a variety of issue which come before the Court.
Encouraging the public and dispute resolution experts to do the Chief Justices’s job for her is not a solution, it simply is a symptom of the problem. Abrahamson’s desire for the Court to go public with its deliberations is an admission that she cannot lead as Chief Justice.