In re: 2011 WI 43, Decision of the Wisconsin Supreme Court

The Wisconsin Supreme Court has attempted to overturn Marbury v. Madison.

In a move which had a number of surprises, none of which were the verdict, the right-wing partisans on the Wisconsin Supreme Court made a political decision to support Governor Teabagger’s (a wholly-owned subsidiary of Koch Industries) assault on democracy, constitutional theory and the rule of law in America by overturning the Dane County Circuit Court’s stay of his union-busting bill.

For those of you new to this debate, the Circuit Court’s decision was based on the fact that in their haste to strip away fundamental rights from Wisconsin citizens, the Teabaggers chose not to worry about niceties such as laws or the state constitution. In particular, the State Legislature violated Wisconsin Open Meetings Law, a law that was passed with the explicit intent of applying to the Legislature’s own actions. Further, the State Legislature violated both Article I, Section 4 (“The Right of the people peaceably to assemble, to consult for the common good, and to petition the government, or any department thereof, shall never be abridged”) and Article IV, Section 10 ("The doors of each house shall be kept open”) of the Wisconsin State Constitution as well, sections which were codified by the Open Meetings Law.

That the Supreme Court would overturn the Dane County Circuit Court’s decision was never in doubt. The Teabagger junta running Wisconsin has shown a consistent contempt for anything that would serve to limit their power in the manner in which the Founding Fathers intended power in the American republic to be limited. Anyone who thinks that right-wing extremists would vote against their own political interests in the name of the law hasn’t been paying attention.

No, the surprises in this decision were two.

First, that the Dane County Circuit Court’s decision was rejected by the right-wing extremists on the Supreme Court on the novel grounds that the courts have no right to review the actions of the legislature, a position that is so far out of the American legal mainstream as to be almost incomprehensible. And yet there it is.

Paragraph 7 of the majority opinion points out that the Wisconsin Constitution grants all legislative power to the senate and assembly, which, in point of fact, it does. It does not follow from this, however, that the courts cannot hold that legislature to account when it fails to act in accordance with other provisions of the State Constitution or with valid state law from which they have not exempted themselves.

Certainly James Marshall, Chief Justice of the United States Supreme Court, didn’t think so when the issue was decided at the federal level in 1803. Even though the Federal Constitution of 1787 clearly states that all legislative authority is to be given to Congress, the role that the courts play in making sure that Congress does not overstep its bounds and violate the Constitution or valid federal law that Congress has not exempted itself is clear. “It is emphatically the duty of the Judicial Department to say what the law is,” Marshall wrote.

This duty was clear during the Constitutional Convention itself, as Alexander Hamilton noted in The Federalist Papers. “A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.”

Judicial review is one of the bedrock principles of American jurisprudence, a fundamental aspect of the republicanism upon which this country was founded and the Constitution written, and without it the Congress would be unlimited in its authority and the Constitution rendered null and void.

Welcome to Wisconsin.

Which brings us to the second surprise in the decision – the unusually blunt language contained in the dissent, written by the Chief Justice of the Wisconsin Supreme Court, Shirley Abrahamson.

Judicial opinions are generally very cautious in their rhetoric. The impact of those words might be revolutionary, but the words themselves are almost always restrained and understated. Those words become part of the case law, liable to citation by future litigants. They are part of the aura of respect that judges build around themselves, that their decisions be seen as impartial, worthwhile, and just.

When a judge steps out of that character and makes clear accusations of malfeasance against colleagues on the bench, that’s surprising.

Abrahamson does just that.

First, she takes the majority to task for “giv[ing] this important case short shrift” in their rush to judgment. “In rendering a decision, a court is to provide not merely an answer but also a reasoned, accurate explanation,” she writes. “A reasoned accurate explanation is not an inconsequential nicety that this court may disregard for the sake of convenience or haste. It is the cornerstone of the legitimacy of judicial decision-making.”

And, sure enough, if you read through the decision of the majority - as indeed I have - such an explanation is not there. As noted by Abrahamson, “[E]ven on casual reading, the explanations [given by the majority] are clearly disingenuous, based on disinformation.”

That’s extraordinarily harsh language coming from the bench. And Abrahamson is not shy about noting where the lack of legitimate reasoning points.

In her stinging dissent, Abrahamson observes that the majority’s decision and the concurring opinion “are based on errors of fact and law. They inappropriately use this court’s original jurisdiction, make their own findings of fact, mischaracterize the parties’ arguments, misinterpret statutes, minimize (if not eliminate) Wisconsin constitutional guarantees, and misstate case law, appearing to silently overrule case law dating back to at least 1891.”

Mere paper barriers, when power is at stake.

“This kind of order seems to open the court unnecessarily to the charge that the majority has reached a pre-determined conclusion not based on the faces and the law, which undermines the majority’s ultimate decision.”

And that, dear reader, is the rub.

There was no real decision made by the majority other than to support the political aspirations of Governor Teabagger (a wholly-owned subsidiary of Koch Industries) by whatever means necessary. It was a foregone partisan decision, without merit or redeeming feature, and as such deserves no respect from a free citizen of a republic.

The future of Wisconsin government looks rather grim, from where I sit.