August 25, 2011

Wisconsin Chief Justice Shirley Abrahamson says she "will propose... that the presumption will be that court conferences are open to the public."

Is that seriously something to be hoped for? The public streaming into judicial conferences as if they were legislative hearings? Abrahamson ties the proposal to the notion that "Each justice owes the others and the people of the state civility and personal control in our language, demeanor, and temperament in the conference room and on and off the bench."
"My initial reaction is ... 'Wow,'" retired appellate court judge Neal Nettesheim said of Abrahamson's plan. "That is truly revolutionary."

But Nettesheim and former state Supreme Court Justice Janine Geske said such a move — akin to allowing the public into the jury room — could have a chilling effect on deliberations by justices, who often change their minds before a decision is final.
Could have a chilling effect? Obviously, it would transform the conferences into some kind of public show and not conferences at all.

How would it be fair to the parties for the justices to deliberate in public? How could it be consistent with deciding cases according to the legal texts and precedents to have these preliminary discussions go out to the public? The proposal seems inherently premised on the idea that judges are the equivalent of legislators, voting according to policy preferences and political orientation.

But since it's also obvious that a majority of justices won't go along with this, Abrahamson's proposal is more of an expression, a way of stating: If only the public could see this...

57 comments:

Jason said...

Funny.

Abrahamson wants to propose that people can see court conferences, yet none of the justices who witnessed the Prosser/Bradley "dust up" said anything publicly about it, one way or the other.

MarkG said...

Abrahamson finds herself in a hole, and so she keeps on digging.

holdfast said...

They should get Nancy Grace to host.

Or Greta.

Either way, somebody should put a fork in the Wisconsin judicial system, 'cause it's done.

Rick said...

Too bad that the Wisconsin Supreme Court demonstrates such a lack of judicial temperament.

Mike and Sue said...

The proposal seems inherently premised on the idea that judges are the equivalent of legislators, voting according to policy preferences and political orientation.
-Anne Althouse

Brilliant.

hoop said...

Court TV: The Wisconsin Years.

Irene said...

Abrahamson also has been one of the few liberals who consistently has wanted judicial elections, not appointments. She believes elections promote judicial accountability.

Henry said...

Court conferences should at least be open to the Praetorian Guard.

Sue D'Nhym said...

Each juror owes the others and the people of the state civility and personal control in their language, demeanor, and temperament in the courtroom and in deliberations. To promote these ends, I propose that deliberation rooms be open to the public.

Or at least cameras. Just think of the ratings we could get!

Carol_Herman said...

Wow. She figured out that she likes her perch. And, she didn't want to fall off of it, either.

"Conferences," by the way ... are what's held in secret. Each justice brings in cases ... and then there are votes. These votes are collected. Usually, (in better cases), the Chief controls. Is in the majority. And, assigns cases.

If the Chief don't like ya, you get tax cases.

This from Abrahamson? It's ODD. But she has no ability to swing anything during the conferences, anyway. She's just a bump on a log.

ORALS are different.

That's where the Supreme-O's have already decided ... while the public is welcome. And, there are galleries to sit in. NO CAMERAS!

Of course, with "Conferences" open ... whose gonna fill those seats? Union cronies?

Oh. And, yes. "She will propose." But whose gonna say "yes?"

I think if she gets her way ... her robe should be white. And, she should have a little veil on her head.

Simon said...

Wow. That's a real pickle for people who believe in so-called "transparent government": How to square their stated preference for transparency with the transparently loony idea of opening the conference to the public. Sure glad that's not a circle I have to worry about squaring!

Again, the Supreme Court of the United States is the most transparent and open governmental institution of any branch in the country, so far as I know... And it manages that without cameras or public access to most of its process. And if that sounds odd, that just goes to show how corrupted our ideas about how much public intrusion is desirable into the machinery of government. Adjust your perceptions accordingly, reject this silly stunt, and pull the cameras from Congress while we're at it.

Ahem.

Bob Ellison said...

How could it be that letting the public see how the judges make binding decisions could be beneficial?

How can it be that you can ask such a question? How's about we let just the law professors see the proceedings?

Simon said...

But listen, this is the kind of thing we're going to have to get used to, in both government and in the Catholic Church. As that most destructive generation starts to feel their grip weaken with age, as their hold on power beings to slip, we're going to see some major acting out as they realize that other people are taking over from them, and that the leading lights of the younger generation have thoroughly rejected the life's work of the passing generation. How bitter it must be to see your time dwindling—to see your revolution failed, and its purported beneficiaries streaming through the palace toward the throne room, not to save you, but as counterrevolutionaries eager to restore all you sought to put beyond repair. It sucks to be Shirley Abrahamson or Richard McBrien.

Simon said...

Irene said...
"Abrahamson also has been one of the few liberals who consistently has wanted judicial elections, not appointments. She believes elections promote judicial accountability."

Rick Perry has similar ideas, so he apparently has as little understanding of the role of law and courts in the Anglo-American tradition as does Abrahamson. But he, at least, has an excuse.

WV: Ressifir, the evil sultan defeated by Alladin.

Real American said...

The lefties on the court would be the first to regret the public seeing their absurd private behavior. Of course, leftists have no shame, so maybe not.

Kansas City said...

Isn't this obviously a tactical move announced on the day that prosecution of Prosser is declined and designed to imply that Prosser is still guilty of bad conduct. These liberals on the court are an embarassment. How did they even get there?

Chase said...

Simon;s BACK?

Simon said...

Bob Ellison said...
"How could it be that letting the public see how the judges make binding decisions could be beneficial?"

You already see how the judges make those decisions: Read the opinions. And that stacks up pretty well as compared to other branches of government; surely no one is so naive as to think that when they watch CSPAN, you are watching how Congress makes binding decisions? That would be utter foolishness. And it furnishes an important example: An experiment intended to produce greater transparency in fact produced less transparency by driving the real work of Congress out of its public legislative sessions, obviating the theretofore quite transparent Congressional Record. In its place we see a dog and pony show where a member blusters to an empty chamber, or members grandstand in public "hearings" in which no one is heard. If you seriously think thrusting cameras (or the general public) into the court's inner workings will produce greater transparency, your threshold burden is to plausibly explain why we might think so having seen it have the opposite effect on Congress.

David said...

In which case, it will work like legislative hearings now work.

All the real discussion will occur behind closed doors (and without the participation of all involved.)

Then preening statements posing as questions and gotcha evidence.

(As long as we are at it, how about public deliberations by juries.)

Simon said...

Hi Chase; I've been dropping by as time allows and as it pleases me for, what, a month or two? Since the Madison riots at any rate. Bygones. :)

David said...

"Oh. And, yes. "She will propose." But whose gonna say "yes?"

I predict another 4-3 vote.

Simon said...

David's got it exactly right. Those who forget history are doomed to repeat it, but those who ignore the examples present in the here and now are doomed to look foolish.

madAsHell said...

It isn't over until we win!

oh...wait!

Michael Haz said...

The purpose of Abrahamson's proposal is to let hard-core leftist protestors into Wisconsin Supreme Court conferences in order that the protestors intimidate the judicial centrists and conservatives into voting with the liberals.

Chuck66 said...

Not sure if this applies, but heard a Minnesota justice talk once. He talked about how he writes and rewrites and rewrites his opinions as lower courts use them to make decesions. Or lawyers use them to make assertions in their cases. So every word is important.

If you have people listening in on the decision making process, I wonder if that will cause distortions in the interpetation of the final outcome.

Bob Ellison said...

Simon, you say I "already see how the judges make those decisions." But I do not! I see the decisions they make. I do not see how they get there.

It appears to be a dirty little secret that judges are politically motivated. Gasp! Indeed. And I would dearly like to understand how they get to the truly bizarre decisions they sometimes reach.

The current system has us all waiting like laypeople outside the Sistine Chapel. White smoke, black smoke. The reasoning inside the decisions is sometimes, though not often, very smokey indeed. I'd like to know how they got there.

If I were a citizen of Wisconsin, I'd say demanding such information from judges would be a reasonable claim.

rcocean said...

Problem: Justices don't play well with others.

Solution: Videoconferencing.

traditionalguy said...

Shirley is a snake who only responds to the charmer's flute of political activism.

She is not deserving of being entrusted with law administration that affects real people's lives.

Wisconsin is still infested with snakes.

Henry said...

Wisconsin is still infested with snakes.

Sounds like Wisconsin needs St. Patrick.

Simon said...

Bob Ellison said...
"Simon, you say I 'already see how the judges make those decisions.' But I do not! I see the decisions they make. I do not see how they get there."

You do see that—or at least you may see it if you choose to read the opinions and if you are familiar with the way courts work. Here is how the judges get there—here is what you would see if you could be invisibly present in the conference room of the Supreme Court. Each judge states their view of the case, and typically there are only one or two positions, all told. Someone writes a majority opinion; someone may write a dissenting opinion. Some judges in the majority may find the dissent persuasive and change their votes, and vice versa. All told, in most cases, one position with one rationale will command a majority. Armed with this knowledge, as any person with business watching the courts will be, you know for all practical purposes (as opposed to the gossipy "did so-and-so lose a majority" inside baseball in which nerds like me indulge) how the court gets to a result, and so all you need to apply that to a case is the opinions issued.

And you would do well to realize that if a judge is so artfully wayward as to conceal their political motivations in the written opinions they craft, opinions that must survive generations of critical scrutiny, do you suppose that they are so stupid as to reveal those motivations in a public hearing in which they suppose the need to evade only transient attention?


"It appears to be a dirty little secret that judges are politically motivated. Gasp!"

It's hardly a secret; if it ever was, Judge Posner has blown the whistle. There have always been willful judges. Indeed, we have an entire generation—the ironically-self-styled "legal realists"—who don't believe in law at all. Some of them made it to the bench, which is too bad but no surprise either. And as I said above, they are seeing their ramparts crumbling about them as younger generations see through and reject their heresy. It's actually quite comforting (if surprising) for me to see that in realm after realm, the stupid destructive modernism of the twentieth century is being rejected by the generation now blooming.

"I would dearly like to understand how they get to the truly bizarre decisions they sometimes reach."

I can think of only a handful of bizarre decisions reached by judges that are not readily explainable by their being stuck with bizarre precedent. Even a decision as seemingly bizarre as Kelo becomes understandable (while remaining wrong) if one reads it.

"The current system has us all waiting like laypeople outside the Sistine Chapel. White smoke, black smoke. The reasoning inside the decisions is sometimes, though not often, very smokey indeed. I'd like to know how they got there."

A strange analogy for you to advance, since it is entirely appropriate for the laity to await the Cardinals' decision, and really no business of ours how they get there. What's more, the college does not issue a written explanation of their decision and reasoning, often replete with dissenting opinions.


"If I were a citizen of Wisconsin, I'd say demanding such information from judges would be a reasonable claim."

The public is entitled to a full and honest accounting of the reasoning of the court (and of the dissenters) in a written opinion. And that is all. Judges are not and should not be directly accountable to the public; that cuts athawrt the traditional lawsaying role of Anglo-American courts and encourages bad judges (as Althouse notes) to think of themselves as the equivalent of legislators.

Big Mike said...

Your Shirley Abrahamson -- her elevator doesn't go all the way to the top floor, does it?

rcocean said...

You can always tell Simon is a lawyer. He uses ten $40 words to express $20 worth of thought.

Bob Ellison said...

Simon, for starters, I won't bother with your little lesson in how judges deliberate. On the second point RE: political motivation in judges, I guess you're saying "yeah".

RE: bizarre decisions-- Roe v. Wade.

RE: the papal analogy-- I guess you don't recognize the sarcasm of my earlier statement. My point is that it is inappropriate for judges to behave like the college of Cardinals. We, the people of Wisconsin (well, not I, actually), are not the Catholic laity.

RE: your last point-- you support my point. Bad judges do indeed act as the equivalent of legislators sometimes. They should be held accountable for such overreaches.

Bender said...

I would dearly like to understand how they get to the truly bizarre decisions they sometimes reach.

Just as there are teleprompter presidents, so too are there teleprompter justices.

Especially on the run-of-the-mill cases, vast proportions of the opinions are written by clerks. And those portions not written by clerks are literal cut-and-paste jobs taking "boilerplate" paragraphs from prior opinions whether they directly apply to that case or not.

Eric Rasmusen said...

Better yet, they could charge admission, put the overflow crowd in separate rooms with closed-circuit TV, and insist that Las Vegas pay a cut for bets on whether Judge Prosser wins with a knockout or just on points.

Eric Rasmusen said...

More seriously, would this really be a bad idea? It would have be accompanied by a rule against ex parte conversation and socializing, but that might be good anyway. Although secret deals and logrolling are good for legislatures, very likely, they're not for courts. And we don't want judges to be honest in their conversation with each other; we want them to have to pretend they're following the law and pretend that they're listening to each other.

English judges used to read their opinions seriatim, with no conference, didn't they?

Simon said...

Bob Ellison said...
"RE: bizarre decisions-- Roe v. Wade."

Roe was one of the most evil things of a century replete with evil things, and the judges who voted with the majority have the blood of millions of innocents on their hands. Most of them are paying a dear price for it now. Be that as it may, however, one must note that when it is shorn of its rhetoric (the bulk of the opinion is of no more substance than its author's paean to baseball in Flood v. Kuhn), Roe doesn't actually purport to be anything but an exercise in raw judicial willfulness. The opinion is, in fact, surprisingly honest and straightforward once it finally gets to the point: "Th[e] right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action…, or … in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." That statement is wrong on several levels, but it's honest: We know from The Brethren that that's what the majority believed. And even if it wasn't, as I said above, you must realize that a judge who is artful enough to disguise his intentions for the ages is fully capable of disguising it from the kind of momentary scrutiny that public access or cameras would bring, which obviates the whole point of the exercise.

"RE: the papal analogy-- I guess you don't recognize the sarcasm of my earlier statement. My point is that it is inappropriate for judges to behave like the college of Cardinals."

They don't, as my previous comment pointed out. The college does not issue written explanations or dissenting opinions. Nor is the college charged with applying the law to specific facts; they have a more solemn, but at the same time more immediately free mandate. It is one that I don't envy them, to tell the truth, although I have gone out of my way to supply my black cat with red collars since he spent a year wearing a white flea collar that made him look vaguely clerical. :p

"Bad judges do indeed act as the equivalent of legislators sometimes. They should be held accountable for such overreaches."

Perhaps that is so, but if we assume that it is, that goal will not be achieved—nor even advanced—by allowing the public into the conference. The arguments for greater public access into court deliberations died with the failure (indeed, counterproductive result) of CSPAN, as I've said above.

Simon said...

Eric Rasmusen said...
"More seriously, would this really be a bad idea?"

Obviously. Quite aside from the sophisticated legalmicated reasons, Michael Haz is quite right: The goal is simply to invite the same kind of intimidation into the courts as we saw in the legislature earlier this year, and the result will be the kind of pablum to which Congress has degenerated since CSPAN.

"Although secret deals … are good for legislatures, very likely, they're not for courts."

I disagree that they're good for legislatures, but even if they are, if your view is that secret deals are bad for courts, why would you want to enshroud the decisionmaking in yet more secrecy? Proponents of greater transparency must realize that the more brightly they shine the light, the further real deliberations will recede, at great cost both to institutional efficiency and public accountability. That's the lesson of CSPAN; don't ignore it.

"And we don't want judges to be honest in their conversation with each other; we want them to have to pretend they're following the law and pretend that they're listening to each other. "

There is no opposition in that purported dichotomy; we want and can have both things.

"English judges used to read their opinions seriatim, with no conference, didn't they?"

They still do, or did until very recently. As did our own courts until Chief Justice Marshall introduced the idea of an "opinion of the court"—an American innovation that contributed greatly to the American branch of the Anglo-American legal tradition. Our way is better.

Lyle said...

What an incompetent justice.

FedkaTheConvict said...

Having the public view judicial conferences increases "workplace safety" for Judge Ann Walsh Bradley.

rcocean said...

It really gets down to this. Do you want to be ruled by a couple lawyers in black robes or do you want to live in a Democracy?

We don't need 5 Ivy league lawyers to tell 320 million Americans whether we can - or cannot - have abortions.

But most Americans like it the way it is. The Power elite realize it good for them, and the average Joe is too apathetic or stupid to care.

That's why I find all these legal arguments boring. The Constitution is what 5 SCOTUS judges say it is. There's no reason to even to discuss. Just accept their rulings, its not like you're going to do anything about it.

geokstr said...

Abrahamson is looking to win either way. The conservative justices turn down her idea, she gets a talking point to use on them about backroom deals and old boys networks.

They agree to it, and not only do the leftists get to pack the room but Abrahamson and Bradley get to goad and pick at everything Prosser says, hoping for him to implode in public.

Bob Ellison said...

rcocean, I think you're right. I wish it weren't so.

JohnnyT1948 said...

1. Is it possible for Chief Justice Abrahamson to be recalled?

2. Is a quorum necessary for the Wisconsin Supreme Court to hold a session? What if some of the justices split for Illinois?

Ann Althouse said...

"How could it be that letting the public see how the judges make binding decisions could be beneficial?"

You would be seeing a judge sitting down reading for a long time and writing. And another judge in another room. Etc. There's nothing to see.

What do you think a decision being made looks like?

Can you even see your own decisions being made?

rcocean said...

I agree Bob, I wish it weren't so either. Go back and read Madison, the Federalist papers, Jefferson, none of this 'SCOTUS uber alles' was designed by the founders - quite the opposite.

The bill of rights was designed to limit the power of the Federal Government and its been turned on its head. So now, 5 Ivy league lawyers can determine whether Sally in Nowhere Nebraska can say a prayer before a Football game - or not.

I'm surprised the SCOTUS hasn't discovered a constitutional right to skateboard on the sidewalk.

But America loves lawyers and that's the way it is.

bagoh20 said...

Unless acting like adults is revolutionary, I don't think we need any such bullshit. Just do your dammed job like adults, you children.

Education and credentials are no substitute for character.

bagoh20 said...

You can't have mob rule without inviting the mob.

Chip Ahoy said...

What do you think a decision being made looks like?

Well, obviously a lightbulb appears and brightens over the person's head just like the cartoons. A flickering bulb in some cases.

dbp said...

With this little stunt, does there remain any doubt that justice Abrahamson is a .... jerk?

AllenS said...

Well, here's what I see, people carrying banners, shouting and banging on drums and cowbells, shouting "Whose house? Our house!"

Then, letting heart-shaped balloons gather at the ceiling.

Really good idea.

AllenS said...

Oh, and read between the lines.

Pogo said...

I think it would be difficult for a judge to make a decision on camera while ignorant overfed college kids, union layabouts, and teachers with work excuses sing Build Me Up Buttercup.

Maybe that's Abrahamson's point.

Calypso Facto said...

AllenS said: Well, here's what I see, people carrying banners, shouting and banging on drums and cowbells, shouting "Whose house? Our house!"

Then, letting heart-shaped balloons gather at the ceiling.


Exactly what I envision. The left's answer to rational decision-making: More cowbell!

paminwi said...

Serious questions: How did Shirley get to be Chief Justice? And, how can she NOT be Chief Justice?

gerry said...

You would be seeing a judge sitting down reading for a long time and writing. And another judge in another room. Etc. There's nothing to see.

You mean they'll cut out the part where the cash arrives in a plain brown manila envelope?

That's the best part.

BJM said...

Shirley you jest...Abrahamson's going all in with hte crazy.