The 7th Circuit does not appreciate the State of Wisconsin's tone.

The Seventh Circuit has a new opinion today -- Toeller v. Wisconsin Department of Corrections (PDF) -- dealing with an issue we talked about at the time of the Alito hearings: whether the Family and Medical Leave Act is capable of abrogating sovereign immunity with respect to leave taken for self-care (as opposed to the care of others, which the Supreme Court dealt with in Hibbs). The question is the scope of Congress's power under §5 of the Fourteenth Amendment, which is limited to remedying the violation of a Fourteenth Amendment right. The self-care provisions don't relate to sex discrimination the way the family care provisions do, which is the basis for distinguishing Hibbs. This isn't about whether the FMLA is constitutional, because it's supported by the commerce power, only about whether Congress can subject the states to suits by individuals for retrospective relief. Like then-Judge Alito, the court upholds state immunity.

But what's really notable is footnote 1, which follows a long paragraph summarizing the relevant Supreme Court cases:

These cases, taken as a whole, demonstrate that the Court has taken care to draw important, and sometimes subtle, constitutional lines in this area. Both for that reason, and for reasons requiring basic courtesy to the courts, we find much of the rhetoric in WDOC’s brief to be entirely out of line. It is not up to Attorney General Peggy A. Lautenschlager or Assistant Attorney General Richard B. Moriarty to accuse Justices of the Supreme Court of making “remarkably intransigent statements,” or to use a disrespectful tone in criticizing dissenting Justices merely for the fact that they wrote a dissent, or to opine about “polarizing declarations.” The tradition of writing dissenting opinions has existed in the United States Supreme Court since the beginning of the Republic, and every Justice on the Court avails himself or herself of that privilege when he or she deems it appropriate. Counsel’s brief is also less than helpful where it draws bizarre analogies to opinions about the current presence of American troops in Iraq, which has absolutely nothing to do with this case. We trust that the State of Wisconsin will adopt a more appropriate tone in future briefs filed with this court.

I haven't seen the brief, but that's really harsh!

Peg Lautenschlager, you should know, is running for reelection right now, with the primary on September 12th:

A WISC-TV poll showed incumbent Attorney General Peg Lautenschlager faces high unfavorable ratings but challengers have even higher "no opinion" ratings.

Thirty-four percent of those surveyed also have "no opinion" of Lautenschlager, despite her four years in office. Thirty-four percent view her as favorable, and 32 percent rate her as unfavorable. University of Wisconsin political science professor Charles Franklin believes the high negative rating is due to her drunken-driving conviction.

Lautenschlager faces a Democratic primary challenge from Dane County Executive Kathleen Falk. And despite a reasonable showing in a crowded primary for governor four years ago, two-thirds of those surveyed have no opinion on the challenger.

The situation is even worse for the Republicans. Seventy-six percent of those polled don't know Waukesha County District Attorney Paul Bucher, and 89 percent don't know former U.S. Attorney J.B. Van Hollen.

The poll was sponsored by WISC-TV and conducted from Aug. 14 though 16 by the firm Research 2000. Six hundred likely voters were selected at random and questioned over the phone.

So we haven't been paying much attention, and now along comes this juicy nugget of a footnote.

Can you do much with this politically? I think you can. People normally don't have much to go on when they think about how the attorney general's work is done. Thus, they revert to interesting but not all that relevant material: the drunk driving conviction. And now here's a hot, pithy paragraph that is precisely about how she does her work representing the people of Wisconsin, and it comes from the 7th Circuit, whose opinion of her work couldn't be more important.

Let's see how effectively Lautenschlager's opponents exploit this -- as well they should!

IN THE COMMENTS: I love this one from J:

...I think your respect for and deference to the court is exponentially higher than that of the general public. Not being a lawyer myself, my understanding of your excerpt is that she basically said the court was full of it, and they're hitting back here.

"It is not up to Attorney General Peggy A. Lautenschlager or Assistant Attorney General Richard B. Moriarty to accuse Justices of the Supreme Court of making 'remarkably intransigent statements,' or to use a disrespectful tone in criticizing dissenting Justices merely for the fact that they wrote a dissent, or to opine about 'polarizing declarations.'"

Actually, anyone who wants to can do those things (watch ANY episode of "The O'Reilly Factor", f'rinstance). Yes, I recognize that it might be considered inappropriate in this context, and I have no problem at all with the court hitting back, but this "it's not up to", along with the final sentence -- "We trust that the State of Wisconsin will adopt a more appropriate tone in future briefs filed with this court" -- sound almost comically arrogant to me. The effect of bringing this up might be the opposite of what you expect.

Well, perhaps the court wasn't so much slamming the attorney general as signalling deference to the Supreme Court. And not just signalling, but hamming it up big time. In any case, if the judges are arrogant, the lawyer has to account for that in writing a brief. The 7th Circuit isn't an Al Pacino movie.

Mr. Kirkland you are out of order!

You're out of order! You're out of order! The whole trial is out of order! They're out of order! That man, that sick, crazy, depraved man, raped and beat that woman there, and he'd like to do it again! It's just a show! It's a show! It's "Let's Make A Deal"! "Let's Make A Deal"! Hey Frank, you wanna "Make A Deal"? I got an insane judge who likes to beat the shit out of women! Whaddya wanna gimme Frank, 3 weeks probation?

DAMMIT!

You, you sonofabitch, you! You're supposed to STAND for somethin'! You're supposed to protect people! But instead you rape and murder them! You killed McCullough! You killed him! Hold it! Hold it! I just completed my opening statement.

Brilliant! We love it! But we're not electing him attorney general.

JohnR did a nice job of finding the references in the brief (which you can read here):

Here are the context and the quotes referred to in footnote 1:

First: "intransigent statements." The Appellant is going on about what you can or can't rely on from a Supreme Court decision where, as in Hibbs, there are many viewpoints expressed by the Justices in what is called a "splintered opinion." In describing what the Appellant referred to as an "analytical abyss" involving Eleventh Amendment jurisprudence between Justices Breyer, Ginsburg, Souter and Stevens on the one hand, and the rest of the Court on the other, the Appellant said, " Indeed, Justices Breyer, Ginsburg, Souter and Stevens even refused to recognize the Seminole Tribe line of decisions as a legitimate subject of discussion, much less precedental. The depth and permanency of this gulf was openly declared through the remarkably intransigent statements made in Kimel v. Florida Bd. of Regents...." (Appellant's Brief at 17....)

Second: "polarizing declarations." The Appellant is continuing to discuss the divide in the Court over Kimel, and quoted Justice O'Connor in that case saying, "...dissenters' refusal to accept the validity and natural import of ... [cite omitted]... makes it difficult to engage in meaningful debate...." The brief gives some more details, and then says (page 18), "These polarizing declarations startled many seasoned Court watchers [cites omitted].

Third: Iraq. The brief (page 19): “Given those ‘steadfast’ positions [cite omitted], was there a detectable meeting of the minds between either Justices Breyer, Ginsburg, Souter or Stevens on the one hand and Chief Justice Rehnquist and Justice O’Connor, on the other…? By analogy, if the current administration were to decide, sometime in 2006, to withdraw all American troops from Iraq, and that decision was supported by persons who were always unalterably opposed to the Iraq invasion, the administration and its opponents would hardly have reached a consensus on their rationales on how the United States should handle Iraq simply because both sides agreed with the ultimate result.”

My take, for what it is worth, is that this section of the brief should have been in some form of commentary rather than in something for a court. It is too gossipy and unlawyerly. At the same time, the writing is hardly offensive, and appears actually to be a fair description of the strength of the Justices’ opinions referred to, however inappropriate it may be to find this in a brief. I think the 7th Circuit’s footnote was an overreaction. Though I must say the Iraq thing was not the best analogy the State might have used.

I found another analogy, which I think is definitely the sort of thing that is going to make a real-world judge roll his or her eyes. In support of the assertion that the Justices in Hibbs had "two mutually exclusive analytical and philosophical cosmologies":

[N]ative American tribes and federal officials indisputably entererd into various treaties over many years, but each side unquestionably did so based on widely different cosmologies. [Citations omitted.] While treaties were the result, the divergent reasons each side entered those treaties would preclude any conclusion that there were controlling rationales that both sides actually adopted.

That's something you might expatiate about in a law school seminar, but it's not going to play with a judge who is likely to see that as embarrassingly pedantic and a waste of time. And it's weirdly political, suggesting that the writer wanted to take the time to air an irrelevant grievance. I'm thinking footnote 1 is the tip of an iceberg of ridicule that took place in chambers.