Bench Memos

Law & the Courts

Shirley, You Can’t Be Serious

With apologies for the Airplane! joke—and for the predicate crime against feminism that is necessary to make the joke work—that’s my reaction to the lawsuit that current (but, if the rule of law prevails, soon-to-be former) Wisconsin chief justice Shirley S. Abrahamson has filed against her fellow justices and various other state officials.

On Tuesday, Wisconsin voters adopted by referendum an amendment to the state constitution that alters the method for determining who is the chief justice of the Wisconsin supreme court. Under the old method, the “justice having been longest a continuous member of said court … shall be the chief justice.” Under the new method, the chief justice “shall be elected for a term of 2 years by a majority of the justices then serving on the court.” The amendment will become part of the state constitution some time this month, when the state board of elections certifies that voters have approved it.

In her lawsuit, Abrahamson contends, over and over, that the amendment would somehow be applying “retroactively” if it were to displace her from her position as chief justice. But the displacement would be prospective only: the position of chief justice would become vacant at the time the board of elections certifies the voters’ approval of the amendment. Further, the natural reading of the amendment and of the explanation prepared for voters is that the amendment would indeed apply immediately. The explanation states (italics added):

The Wisconsin constitution currently provides that the chief justice of the Wisconsin Supreme Court is its longest-serving member.  The proposed constitutional amendment would instead select the chief justice through an election by a majority of the justices then serving on the Court.

A “yes” vote on this question would mean that the chief justice shall be elected for a term of two years by a majority of the justices then serving on the Wisconsin Supreme Court.  The justice who is elected may decline to serve as chief justice or resign the position, but still continue to serve as a justice of the Wisconsin Supreme Court.

A “no” vote would mean that the longest-serving member of the Wisconsin Supreme Court serves as chief justice of the Court.  The justice designated as chief justice may decline to serve as chief justice or resign the position, but still continue to serve as a justice of the Wisconsin Supreme Court.

Notably, the amendment does not contain any language that would defer its operation until some future time. In short, insofar as it is intelligible to describe the amendment’s immediate prospective application as somehow “retroactive,” that application is what the amendment calls for.

Abrahamson further contends that such application would violate her Fourteenth Amendment rights and the same rights of her co-plaintiffs how voted for her. That’s just the sort of activist nonsense that Abrahamson has been notorious for during her decades on the court. Too bad that Wisconsin’s voters are only removing her from the position of chief justice.

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