Something has clearly happened to the Wisconsin Supreme Court. With many contentious 4-3 rulings, and a conservative majority and liberal minority that openly castigate each other in their opinions — and now an alleged physical altercation among two justices — how has the top of Wisconsin’s judicial branch become so politically divided as to possibly lead to physical confrontation?
TPM reached out to several former clerks at the court to get a sense of things on the inside. One former clerk who was willing to speak with us, who had served with one of the liberal justices, said that when the judges would discuss their decisions in a closed-door conference room, loud arguments — including shouting by Prosser — could be heard from outside the door. With that said, the source said that matters have escalated over the past decade, as the line-up of the court has changed through the addition of strongly conservative members in contested elections.
“The court has seen a tremendous amount of transition over the last five to seven years, and it’s moved decidedly right,” the former clerk also explained. “It used to be a lot of these justices weren’t elected to open seats, they were appointed and came in as sort of consensus candidates. They went through a process where it was much — they couldn’t claim a mandate. But now you’ve got justices, a series of them…they’ve all been elected, and they’ve all come in feeling that was a mandate for them.”
Indeed, of the court’s current seven members, only two — Prosser, who has become the leader of the conservatives, and his rival Chief Justice Abrahamson, who has become leader of the liberals — originally made it to the court through appointment. Of the remaining five, liberal Justice Ann Walsh Bradley (who has accused Prosser of grabbing her neck in a chokehold) and Patrick Crooks were first elected back in the mid-1990s, while the three other conservatives — Patience Roggensack, Annette Ziegler, and Michael Gableman — came to the court over the past decade through heavily contested elections, with 51%-49% results for Roggensack and Gableman (the latter of whom defeated an appointed incumbent who was supported by the Democrats).
In addition, Prosser had previously served in the state legislature for 18 years, including six years as GOP minority leader and two years as Speaker. He left the legislature in 1996, and was later appointed to the court by GOP Gov. Tommy Thompson in 1998.
“You’ve got Prosser who is very bright, but is still a politician,” said the former clerk, “and it goes back to his time in the state legislature, which is a win-at-all-costs mentality.”
Charles Franklin, a professor of political science at the University of Wisconsin said that the court has been become more politicized over a process lasting for at least the past 10-15 years, with this past spring election — very narrowly won by Prosser, after it became a late proxy battle over Gov. Scott Walker’s agenda — being the most explicitly partisan yet.
“I think if you look at the April election, it seems very clear that people transferred their normal political battle into that Supreme Court. And I think some of the issues about Justice Prosser, his calling the Chief Justice a ‘total bitch,’ and saying he would ‘destroy’ her, came out during that campaign, and certainly added to the sense that the court was terribly divided and not going about business in the usual judicial temperament that we might expect.
“But I think even with all of that, nobody expected the developments from this weekend, that it would come to a physical altercation between the Justices. So even among political observers, there is considerable shock that the Court not only argues through their written opinions and verbal conferences, but don’t control themselves better than this.”