Politics & Policy

Wisconsin’s Chief Injustice

Shirley Abrahamson is an activist judge par excellence.

Atop Wisconsin’s supreme court sits Chief Justice Shirley Abrahamson. And an unhappy chief is she. Conservatives outnumber liberals on the court by four to three, forcing Abrahamson to dissent in 37 percent of the cases during the 2009–10 term. Meanwhile, the legal challenge to Gov. Scott Walker’s “budget repair” bill is rushing toward the court’s docket.

If only she had one more vote.

Luckily, Justice David Prosser, a conservative, faces reelection next Tuesday. His opponent is JoAnne Kloppenburg, Abrahamson’s former intern, who has become a Joan of Arc for the Left. Polling between the candidates is even, a bad sign for the incumbent. But behind Prosser’s travails lie not only enraged state-employee unions, but also a wily chief justice, who is “maneuvering to get the court back to a liberal majority,” a source tells National Review Online.

Three things are clear: First, Abrahamson, 77, is an accomplished jurist. In 1953, she graduated from New York University magna cum laude. She then followed her husband to Indiana University, where she earned a law degree in 1956. In 1962, she secured a doctorate of law at the University of Wisconsin. For the next 14 years, she worked for a law firm in Madison and taught at the law school until Gov. Patrick Lucey, a Democrat, appointed her to the supreme court in 1976. She’s been there ever since, winning reelection four times. As the longest-serving justice, she serves as chief, a role she assumed in 1996.

Second, she is a liberal jurist. Abrahamson proselytizes for the legal school of thought known as “new federalism,” which encourages state supreme courts to interpret their state constitutions independently of the Supreme Court — that is to say, more broadly. In Wisconsin v. Knapp, for instance, Abrahamson joined the majority, which rejected a bloody sweatshirt found in a suspected murderer’s home as impermissible evidence. Although the Supreme Court had held the Miranda stipulation — that an officer enumerate a suspect’s rights before his testimony becomes valid — did not apply to physical evidence, the court based the ruling on the Wisconsin constitution and presto! A new liberty was born.

Abrahamson’s most notorious opinion, perhaps, was Ferdon v. Wisconsin Patient Comp. Fund, in which she struck down the state’s cap on medical-malpractice rewards. The legislature had capped the amount juries could award for noneconomic damages at $350,000, but the chief found the limit in violation of “equal protection.” “The Wisconsin legislature chose a $350,000 cap on noneconomic damages as the means of achieving its objective [of lowering health-care costs],” she wrote. “We do not question the wisdom of that choice.” She then proceeded to question the wisdom of that choice:

The cap divides the universe of injured medical malpractice victims into a class of severely injured victims and less severely injured victims. Severely injured victims with more than $350,000 in noneconomic damages receive only part of their damages; less severely injured victims with $350,000 or less in noneconomic damages receive their full damages. In other words, the statutory cap creates a class of fully compensated victims and partially compensated victims. Thus, the cap’s greatest impact falls on the most severely injured victims.

Such a division was “irrational” and thus unconstitutional. Never did it cross her mind that it was the legislature’s prerogative — or in other words, the people’s right — to determine how much victims deserved in compensation. Abrahamson outdid herself, however, when she summarily declared:

A statute may be constitutionally valid when enacted but may become constitutionally invalid because of changes in the conditions to which the statute applies. A past crisis does not forever render a law valid.

Nor, apparently, does a legislature.

Over the years, Abrahamson scored points for the Left, opposing school choice and citing foreign law to achieve her purposes. For her reliable jurisprudence, liberal activists rewarded her handsomely. The list of her campaign donors reads like the Democratic party’s roll call: The American Federation of State, County, and Municipal Employees; Services Employee International Union; Planned Parenthood; the American Federation of Teachers. Between 1989 and 2009, labor unions gave Abrahamson over $190,000 in campaign donations — more than they gave to the other six justices combined.

Which leads to the third clear observation: Abrahamson is a savvy politician. To guard her right flank, she palls around with cops. She visits every county in the state, in fact, to curry favor. “If there were a group of six people in a snowstorm 200 miles away, she’d go talk to them,” former justice Janine Geske jokes to National Review Online.

When an electoral opponent accuses her of being a liberal, she plays dumb. “I don’t know what these labels mean,” she told Isthmus in 2009. And when she’s giving a softball interview, she reminds the audience that she’s the first woman appointed to the state supreme court — and the first female chief justice.

But now, things get murky: Is the chief justice trying to oust Prosser? “Without a doubt,” another source says.

That source tells NRO that Abrahamson has tried to schedule meetings at inconvenient times for Prosser to prevent him from campaigning. She also tried to recruit a candidate to run against him for over a year until Kloppenburg claimed the mantle.

If true, her behavior is in character. Last year, in a heated argument, Prosser called Abrahamson “a total b**ch” and threatened to “destroy her.” Oddly enough, the press got word of the year-old argument only a few weeks ago. And it was liberal justice, Ann Walsh Bradley, who committed the remarks to e-mail, ensuring there was written evidence.

Yes, tension has marked Abrahamson’s tenure on the court. An unnamed justice told the Milwaukee Journal in the mid-1980s that Abrahamson gave colleagues the finger in conference and mocked their opinions. Indeed, Prosser actually stands by his comment. “I probably overreacted, but I think it was entirely warranted. . . . They [Abrahamson and Bradley] are masters at deliberately goading people into perhaps incautious statements. This is bullying and abuse of very, very long standing.”

Now, with Prosser’s reputation sullied, Abrahamson and her liberal cohort stand to regain preeminence on the court. The new majority should reduce the tension — for the chief justice will just ignore the conservatives entirely.

— Brian Bolduc is a William F. Buckley Fellow at the National Review Institute.


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