I'm recording and I look at
him. Yeah, you can talk to me.
But I guess let's start with
this last term, we saw
a number of significant decisions.
Evers versus Mark Klein had one and
two with the stewardship
and joint finance oversight and
most recently with the Joint
Committee for the Review of
Administrative Rules.
We saw things having to do with
the attorney general and his ability
to settle civil lawsuits.
We saw stuff with promulgating rules
for the spills law and whether they
had to back and redo all this.
Is there a way to summarize how
significant all these cases are
together in terms of
really re-approaching that balance
of power?
I think that the
cases that the court has been
deciding is certainly,
if not redoing but
clarifying, the responsibilities
of the branches of government.
We didn't used to have those kinds
of cases for the most part.
And so I think the legislature,
primarily an attorney general, just
sort of developed their own
process and belief and people
accepted that.
And because of the tension, I think,
between the parties,
there's much more tension that if
you make an appointment, how long
can the person serve?
Or does the governor have that
authority? We used to have some of
the governor attacks on
both Governor Thompson, I know,
and Governor Walker.
But I think
that both at
the national level and particularly
at Wisconsin, there is a
redefining and shifting of
what people thought was the balance
of power and what the court is
saying is now the balance power.
But as the court changes, you never
know where the next step is going to
be.
Justice Hagedorn, in one of the oral
arguments, called the
Joint Committee for the Review of
Administrative Rules kind of a
gentleman's agreement, saying it may
not fit the definition of the
Constitution of the vested powers,
but everyone just kind of agreed
that that's the way it was, and
there have been a couple of court
cases since then, Martinez
significantly, that it kind of
upheld that framework.
What does it take for a court,
besides a shift in a majority, to
come through and say, well, we need
to really look at this from the
ground up of whether this is even
legal in the first place?
Well, I do think as
the parties and the issues
tighten and
become much more contested,
that's really when the court has to
step in.
And so there are a lot of things
that are habit or the way we
always have done it or the informal
rules, and as
long as everybody's sort of agreeing
to it, it works.
But ultimately,
I think that the parties are
much more partisan.
There's much more,
it can be close to votes on
things and people at
the legislative level want to
have control and
the general wants control and a
governor wants control.
And as a result that sort of bubbles
up to the court and
the court I think for the
most part has to tackle those
things. I mean they either have to
say there's a justification for it,
not just a gentleman's agreements or
parties agreements.
There has to be a constitutional
legal justification, or if
not, we're gonna redefine it.
I think one of the things that
jumped out at me looking at all
these cases is that they weren't
often the 4-3 split you might have
expected. Some of these were 7-1,
or 6-1 or 7-0 in terms
of like, no, this is not
constitutional.
Well, I think this past term,
and I've talked about this,
was interesting in terms
of the splits on the court.
And certainly in this area is one
area you see it.
I think there's
a belief in our
greater state that everything is
4-3, depending on who's
in control of the court, and you
look at the number of cases,
particularly the second part of this
term that came out, that were
unanimous seven one six.
You know.
Sixth one,
and split, and then
odd bedfellows on top of it, you
know, so you'd have people that
you'd think would be together
who are not together.
So I think that's healthy.
I really, I was glad to see that
because I think
a court that is totally predictable
is really a court, that looks like a
legislature.
And that is a lot of
what there was being discussed was
who holds the, I mean, this is
kind of a great civics class of
a term. It's like the balance of
power between the legislative, the
executive, and it was the judicial
coming in and deciding what
works and what doesn't work.
You know, I think as
our civics lessons have
faded out in high schools and
a lot of people don't understand the
three branches of government and the
independence of the judiciary
and holiday balance and
checks and balances, I thin these
cases are really doing
a sharp analysis for people that
there's conflict.
I mean, that's the whole idea of the
government is that there is conflict
and The court is overseeing
the legality and the
constitutionality of what the other
branches are doing.
And I think that's healthy that
people that are paying attention see
that that's how our democracy was
built.
I don't like it when it shifts too
often. That's my concern.
It happens at the federal level and
sometimes happens at state level.
That the court has decided a case
and then a year or two later it
decides it in a different way.
Because I think that's a problem.
But defining things for the first
time in a new way I think is
very healthy for the court and it's
healthy for our democracy.
So in speaking about that
precedent, because the especially
for J. Crar, there was the Martinez
decision. And I think it was a
planned parenthood.
What I forget the exact Kate or
maybe there was one
just a few years ago in post covid
that reexamined that same issue or
post lame duck term that reexamine
some of those same core issues and
both of them found that the review
of administrative rules from
legislative oversight was
constitutional.
So what does it mean when?
We see that many
decades of precedent thrown out
or upended over this.
I always called myself a
conservative judge because to
be conservative is honoring
precedence if you can or
if not to move very slowly
and change it.
And the reason I feel strongly about
that is that society,
business, individuals, law
enforcement can adjust to
whatever the opinion is if you're
swinging from side to sign.
It really is disruptive for
everybody. It's disruptive for the
economy, for knowing what your
role is and things.
And so, you know,
I don't like to see that happen.
I understand why it does.
And maybe, you now,
philosophically, I may be happy it
changed, but I worry about
the fact that the court swings too
far and
really causes chaos on
those other branches.
And so the review of
the administrative rules and to some
degree the spills law, the DNR's
ability to enforce PFAS
legislation or create new standards
without having to go through the
rules process each time.
That one seems to be the
most widespread concern as
to this could redraw the
landscape out there.
And conservatives on those
committees are saying.
You know, we now have no oversight,
we have no ability to stop unchecked
administrative executive power.
And it's Democrats saying, well, you
were the one stonewalling it in the
first place.
So is it ever relevant to
look at what caused this or who's
to blame for how we got to the point
where it needed to be looking at
this? Or is it just looking forward?
Well, I think the court knows
what's been happening.
I don't know that, because of
whose fault it is,
should control how the case comes
out. But it's a better understanding
of how this arose.
And it may give you a better
understand on how you can lawfully
interpret it and not have a complete
overthrow of some principle.
And so, I think
that, that...
You know the court doesn't live in a
vacuum it reads they read the
justices read the newspapers listen
to the news and and certainly know
what's going on
but ultimately that's not their role
their role is to say what what's
constitutional what's legal the
whole issue and again it's a
federal level and a state level of
the administrative agencies
and who oversees
them and who has control
and
what the level of
deference the courts have to pay to
those rules has been
in controversy for a number of years
and it's
swung a little bit one way or
another but I think we're heading
now to saying we're not going
to give the agencies the
kind of control they've had in the
past.
But, you know, I think that
the court has really tried,
Wisconsin Supreme Court has tried to
be conservative in the
sense that it's moved slowly on
those issues, and partly because of
the divisions on the court.
So in terms of the
review of rules, the
legislature was accused of having
basically a pocket veto,
where they could permanently uphold
any rule as long as they wanted.
Most of that came from the lame duck
laws passed at the end of Walker's
term, which were expressly designed
to hamstring the Evers
administration coming into power.
That came to a head.
But now the Republicans are removing
all of that oversight.
Means now that there's basically,
they're saying that the
administration's gonna be a little
pocket legislature, that these
agencies can create whatever rules
they want.
Is it ever the role of the court to
look at what could
happen on the other end if they have
to rule that way?
Well, that's
not the lens in which they look,
you don't look at it through a lens
of what could happen.
But the court considers that.
You know, often when you're trying
to draft an opinion, how you write
it is as important as how it turns
out.
And the court is mindful
of, you know, not
wanting any branch to totally
overpower another branch.
And so, it may be a
matter of how the decision is
written as
to whether or not...
You know, the legislature's going to
have some control over this.
The legislature has control.
They create the budget,
they make the money,
they provide the
guidance, and then the agencies make
their decision, and the question is,
can you have this small group of
legislators then throw it out at the
end?
And I think the court reached the
right decision in that case,
that there really was no authority
for them to have that kind of veto.
But maybe, and I haven't
looked at this, but maybe there's
some way for the legislature to
ensure something else at a different
point.
And that's where you have to read
the opinion carefully to see whether
the court gave you some leeway on
something else.
For instance, we've seen with the
Stewardship Fund being the oversight
of JFC and the anonymous
vetoes and holds,
that Republicans are trying to
redraft that bill but in a new way
to still give them some oversight.
Right.
And we've see Republicans change
how they write the budget out
of fear of the way the governor's
veto pen can work.
Is it going to be that going forward
we'll just see more creativity with
those decisions in mind.
Well, I think that's what happens on
decisions that particularly upend
what people have been doing.
And I think what happens is
that the branches get more
creative and they
look at the court or what the court
has said to see if there's a way
they can craft something to
be able to do it.
And that's the court's role is
ultimately to take a look at it and
to see whether as constitutional or
not.
But that's how it's supposed to
work.
And that's why the
decision itself is as important
as the holding, because the
holding just tells you what happens
to the parties or this issue.
But how the court set it, what tests
it set up, those
tests are really critical for
people to say, what can we do?
How can we this?
And ultimately, I think
government works best when
there is creativity and negotiation.
And, you know, you look at, it
wasn't this term, but gerrymandering
case, the whole map
drawing case, you know and there's
obviously great controversy and
upset when the court decided to
throw out the map and we're looking
at these others, but ultimately
everybody agreed on
their map that the court didn't have
to decide.
And to me, you now,
then it was unimpeachable, it
couldn't be appealed.
And I just think the government
works best like that.
And then the court will have to look
ultimately if it still meets the
test.
You mentioned before that taking a
conservative approach just usually
just means moving slow, limited
impact.
And I'm thinking of Justice
Hagedorn's in part,
you know, dissent and
his agreement with the decision
that, you know he would have found
the one is moot and then the other
one would have gone into effect and
then kind of leave it at that not up
turning president.
I mean, that seems to be that middle
ground. And I think a lot of people
do look in any of these cases, where
is Hagedorne first to see if
it feels like a partisan split or if
it's where he is, where he sits.
I hold Justice Haggard
in the highest regard because
looking at his opinions,
he very much understands
the role of the court.
And so you could tell his judicial
philosophy and some
of your political philosophy seeps
in and he's a conservative.
But he understands the roll of the
Court is different than the role
legal counsel to the governor
or a legislator.
And, as a result,
not everybody on his side
wins, you know, and
I think he writes very
thoughtful opinions whether it's a
dissent or a concurrence or the
majority as to why he's
doing that.
And so I, you now, to me
that's what you want from a judge is
you want somebody who looks at it
through a legal lens and a
constitutional lens and not
a political one.
So Republicans are saying that the
new fear here is
unchecked administrative power.
If that happens,
their only way
to go about anything will be to file
lawsuits, right?
It'll end up back in the court.
So does it ever occur where the
Supreme Court gets a second crack to
try and say, oh, maybe we went too
far? Or does that happen in the?
There are times that the court
does a reconsideration of a
decision because things happen that
they didn't expect to happen.
Now that is, I can't
think of a constitutional place
where that's happened.
But certainly in the
develop of common law or
interpretation, the court writes an
opinion and then hears and
sees that it's gone wild somehow.
The court will
not infrequently a few years later
take the case back in some other
permeation.
But that's one of the things the
court has to evaluate when it looks
to take a case.
Is that next case going to
fit to address
the issues that you're concerned
about? But they certainly have
narrowed a decision
or broadened it or reinterpreted
it. And that's something the court
does, and particularly when you
have unintended results.
You know, as a justice,
We always try to think of every
way that the decision could impact
any area of the law.
You know, we kind of play devil's
act. Well, what about this area?
What about that area?
Could this be interpreted for that?
And even the questions that are all
argument are often that, how would
this apply to broad base?
But there are always going to be
times that no one foresees
where somebody takes it.
And so it is
part of the role of the court to
reconsider it and say there's a
problem out there, we ought to at
least take a look at it, and maybe
they just reaffirm the prior
decision, but you know,
do a new reexamination
of the issue.
I know that you'll be shocked to
hear that there might be hypocrisy
in politics, but at the state level
we have legislative republicans who
are very worried about unchecked
administrative authority.
And at the federal level, we have
democrats worried very much about
uncheck administrative authority,
and neither one of them seems to
understand that it's completely
opposite of what they're asking for
and based entirely on what party
or what person is in charge.
And I mean, should we laugh at them?
Can we call them out for that, or is
that just the nature of politics?
Well, I think the
worry of
the legislators, both federal
and state, in terms of
what the impact is,
often reflects how they feel
it's going to impact tomorrow.
There's very little foresight
in these discussions about what
happens if the other party gets And
we see that happening, right,
we saw that happening at the state
level.
Where you know a governor is
given a lot of authority and then
suddenly a governor of the other
party has it and then nobody then
they don't like it.
And so you know I think
that is the nature of the
the tension between
the parties.
I wish legislators would be
looking a little bit down the road
and say what's the best for the
country or what's best for the state
but it really is you know
what's good for us tomorrow.
Looking broadly at the state of
the court, there's been upheaval
since, you know, Janet Protasewicz
won, and the majority did shift.
We've seen, you know, new chief,
well, two new chief justices, and
Walsh Bradley was there temporarily.
But going forward,
what is this state of the court in
your opinion?
I mean, given your long
understanding and history of it, can
you put some context for people
who do look too much in the moment?
Well, you know,
one of the things I've said to
people that when you look at the
court, every time it gets a new
justice, there's a shifting,
you know, everybody has to sort of
take a look at where they are and,
you know and there are some
alliances and some issues that
develop, so that that
the personality of the court can
change, the interactions can change
and I'll give an example,
a very historical example.
Chief Justice Shirley Abraham said
before she was chief and Justice
Day, Raleigh Day, who
became chief justice, did not have a
good relationship when I was on the
court.
It was very clear, it was pretty
open and then when
Justice Day became
Chief Justice and he was going to do
it for one year until Justice
Abraham said was going to take it
over. He decided he was gonna change
what was happening.
So he was gonna work towards
civility.
We suddenly were going out to lunch
once a week at the Madison Club.
We were trying to be respectful
to each other and and
both Shirley and Raleigh
rose to the occasion.
I mean it was it just was a
different court.
And so in terms of interaction
and personality, that can have
a significant change.
What's important is you get the kind
of judges who could respect people
who disagree with them.
And we've had some problems with
that in the last several years,
where, in my view,
particularly dissents have become
very nasty towards other
justices.
That strikes at the heart
of collegiality.
And I think that
that. You know, and so,
you know, Ann Walsh Bradley has
been an incredible member of the
court for a long time, for 30 years.
She's got all the historical
knowledge of the Court.
She was there when I was there.
And that's going to be
a piece that's missing from that
Court. I mean, the rest of the
Justices are relatively new compared
to that.
And so there's going be some
adjusting in terms of power and
information and
you know, we'll have to see where it
goes. I'm always hopeful that the
court will become more collegial
even if they totally disagree on
their opinions and that people can
have faith in the decisions that
come out of that court.
And we've got, bang,
bang bang, a lot of judicial
elections coming up in the next few
years. We're in the thick of every
year these are coming up.
Does that impact a court
in one term, knowing that one of
their members is up?
Elections impact the court,
there's no question.
You know, I'm just gonna back up
for a moment so people understand,
we are different, Wisconsin's
different than other states that we
only allow one justice to be up at
a time.
So places like Iowa and others, you
suddenly can have three people that
are off, they have three new
justices which really can create
chaos.
And so actually our
founding fathers were
wise I think to say only one comes
up.
Particularly where people have a
perception, and then justices too,
that you have a conservative branch
of the
court and a more progressive
branch of court in terms of
philosophy, that that
shifts when somebody keys up.
This next year, that's not going to
happen.
So, you know, it's going to be,
as people perceive from the outside,
a four-three split.
And it could become a 5-2
split, but that
won't create the
swing that we had over
Jennifer Osei, which is election.
And, you know, I think it
doesn't affect the court in what
cases it takes or timing of case.
And I think the court, I know when I
was there and I believe it's still
that way, the court tries really
hard not to issue opinions
or decide opinions according
to the class.
You know, who's going to be here,
can I delay it till the fall, can
i... And that really doesn't go on.
I think that's sort of a fundamental
view for the justices and they
pretty well follow it.
It's one last question having
to do with the national, but you
mentioned redistricting.
Obviously there is a national issue
over redistricting with Texas and
some other blue states looking at
doing it right now.
Wisconsin's court recently said no
again to redistricting our
federal congressional seats.
And your view is that the right
approach? Are they trying to send a
message to stay above the fray?
Or are they looking for
technicalities to not have to wade
into it?
You know, there were a lot of voters
who voted for to
say what's in Crawford for
their progressive intent
that might be disappointed that
they're not delivering on what they
thought they were getting.
Well, one of the
things when they deny taking it
at a certain time is you don't know
why.
And it could be a lot of different
reasons.
My guess is it wasn't timing.
It might have been, you
know, this case isn't in the right
position. It has to be, more issues
have to be decided by the lower
courts before it comes to
us.
And so it's like the U.S.
Supreme Court issuing a lot these
interim decisions where nobody
knows what the rationale is.
And so, you know, I think
that that issue will bubble up
again, the court will probably
face it again.
Maybe it will take it next, it will
be a new justice, you know, and so
maybe the court will take this.
But I think, you know, it's hard,
you know, courts decide to take
and not take cases for lots of
different reasons, and it isn't
always because they don't want to
tackle the issue.
Anything else that you'd like to
address? No.
I'll be pretty thorough.
All right. Well, thank you so much
for giving us time. You're welcome.
I really appreciate it.