A series of judicial embarrassments, including a physical confrontation this summer, resulted in a public outcry for reform and change in our highest court’s practices. When Chief Justice Shirley Abrahamson announced her proposals to the state Supreme Court, there was hope it would do just that. Instead, her suggestions would have led to further embarrassment of the court and destruction of longstanding judicial practices.
Abrahamson’s proposals tried to address these embarrassments by opening all conferences to the public, including discussions about which cases the court would accept and allowing the release of recordings or transcripts of opinion conferences at least one year following the release of the opinion. The goal was to create more transparency so the public would better understand who and what it votes for every 10 years.
Something about the proposals indeed rings true. Elected officials do need to be held accountable to the electorate and their constituents. But despite what the people might think, the Supreme Court justices are not public servants. Abrahamson’s proposals try to hold the justices accountable to the public, when they are only accountable to the law.
The state Supreme Court emulates the United States Supreme Court in its practices and proceedings. The justices debate and vote on which cases they hear for the next term. They then read the attorneys’ briefs, preside over the trials and ask the hard, controversial questions. At the end of the trial, they have an open conversation about the issue, debate among themselves and come to a conclusion. This becomes the law.
There is a very good reason these conferences are kept closed. When deciding which cases to hear in the next term, the justices will normally choose cases wthat present a question of first impression or debate an unsettled area of the law. Their decisions are strategic, not political. However, opening these conferences to the public would invite public outcries and outside influences, turning a purely legal decision into a political one.
For example, imagine if the court had been open when the justices were deciding if they should take up the budget repair bill. A nuanced debate which would normally be centered on open meeting laws and judicial supremacy would devolve into caterwauling over the Koch brothers and fleeing Democrats. This would shut down the judicial process, causing their proceedings to come to a screeching halt.
Giving the public access to opinion conferences would be even more detrimental. Judges belong to a very specific profession that is not understood by the public-at-large. The nuances behind their decisions go over the heads of the majority of the public. Closed conferences allow the justices to speak openly and frankly with one another. Without this protection, not only would discussions among the justices chill, but judicial proceedings would be significantly altered for the worse since their language would have to be dumbed down in order to accommodate the public’s lack of legal knowledge.
As Justice Patrick Crooks said, “It’s a little bit like the old saw about making sausage. I don’t think you want to see that in the Supreme Court.”
It is clear that public transparency cannot be achieved without severely hampering the judicial process. Therefore, instead of enacting reform, the Legislature should focus on eliminating the election of state Supreme Court justices in order to ensure the future respect and posterity of Wisconsin’s highest judicial body.
Alex Brousseau ([email protected]) is a second year law student.
