I'm recording and I look at him. Yeah, you can talk to me about him, but I guess let's start with
this last term. We saw a number of significant decisions. Evers versus Mark Klein had one end to
with the stewardship and joint finance oversight and this most recently with 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 go back and redo all this. Is there a way to summarize like how
significant all these cases are together in terms of really reapproaching 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 use the
hands of those kinds of cases for the most part. I think the legislature, primarily in the
attorney general, just sort of developed their own process and belief and people accepted that.
Because of the tension, I think, between the parties, there's much more attention to if you
make an appointment, how long can the person serve or does the governor have this? We used to have
some of the governor attacks on both the 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, what the court is saying is now the
balance of power. But as the court changes, you never know where the next step is going to be.
Justice Hagadorn 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,
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 General wants control and the 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 the
gentleman's agreement or party's agreement. There has to be a constitutional legal
justification or if not, we're going to 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 four, three split you might have expected.
Some of these were seven one or six one or seven zero 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 whatever you see it. I think there's a
belief in our greater state that everything is four, three, 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, six, six, 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. And so I think that's healthy. I really 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 the term. It's like the balance of power between the legislative, the
executive and the judicial coming in and deciding what works and what doesn't work. Yeah, 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 need the pins of the judiciary and how they balance and
checks and balances. I think 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's 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 and, you know,
it happens at the federal level and sometimes happen at the state level that the court has
decided in a case and then a year or two later it decides it in a different way because I think
that's a problem. But the fighting 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. Carr, there was the Martinez decision and I think it was a
Planned Parenthood. I forget the exact case. Maybe there was one just a few years ago in post
COVID that reexamined that same issue or post lame duck term that reexamined some of those
same core issues and both of them found that the review of administrative rules and legislative
oversight was constitutional. So what does it mean when we see that many decades of president thrown
out or upended over this? Well, I always called myself a conservative judge because to me,
conservative is honoring precedents 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, you know, to whatever the opinion is. If you're swinging from side to side,
it really is disrupted for everybody. It's disrupted 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 know, I mean, 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, you know, the rules
process each time. That one seems to be the most, you know, 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
understanding 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,
the justices read the newspapers, listen to the news, and certainly know what's going on.
But ultimately, that's not their role. Their role is to say 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 difference the courts have
to pay to those rules has been in controversy for a number of years. And, you know, 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 rules long as they wanted. Most of that came from the
lame-dock 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 saying
removing all of that oversight means now that there's basically they're saying that the
administration is going to be a little pocketed 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 decisions were written as to whether or not, you know, the legislation is 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, you know, 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, you know,
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 you know, we've seen Republicans change how they
write the budget to out of fear of the way the governor's veto pen can work. Is it going to be
that going forward will just see more creativity with, you know, those decisions in mind?
Well, I think that's what happens on decisions that particularly up end where people have been
doing. And I think that 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, you know,
to be able to do it. And that's what the court's role is ultimately to take a look at it and to see
whether it's constitutional or not. But that's how it's supposed to work. And, you know, it's it's
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 said it, what tests it set up are
what those tests are really critical for people to say, what can we do? How can we do this?
You know, and ultimately, I think government works best when there is creativity and negotiation.
And, you know, you look at, I was, you know, this term that Jerry Mandarin case, the whole
map join case, you know, and there's obviously great controversy and upset when the court
decided to throw out the map and we'll look at these others. But ultimately, everybody agreed
on their map that the court didn't have to decide. And to me, you know, then it was
unappeachable, it couldn't be appealed. And, you know, I just think the government works best
like that. And then, you know, then the court will have to look ultimately if it still meets the test.
You mentioned before that taking a conservative approach, usually just means moving slow, limited
impact. And I'm thinking of Justice Haggadorn's in part, you know, dissent and his agreement with
the decision that, you know, he would have found the one is mute, mute, and then the other one would
have gone into effect and then kind of leave it at that, not upturning precedent. I mean, that
seems to be that middle ground. And I think a lot of people do look in any of these cases,
whereas Haggadorn first to see if it feels like a partisan split or if it's where he resits.
I hold Justice Haggad in the highest regard. Because looking at his opinions, he very much
understands the role of the court. And so, you know, you could tell his judicial philosophy and,
you know, some of your political philosophy seeps in and he's a conservative. But he understands
the role of the court is different than the role of 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 concurrent sort of majority as to why he's doing
that. And so I, you know, to me, that's what you want from a judge is you want somebody who
looks at it to 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, they're really their only, you know, way to go about anything will be to file
lawsuits, right? I mean, 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 is that, is that happened in the?
Yeah, there are times that the court does a reconsideration of a decision because things
happen that they didn't expect to happen. Now that that is, I can't think of our constitutional
place when 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 and some other
permeation. But that that's one of the things the court has to evaluate when it looks to take a
case is that that can next case going to fit to, you know, address the issues that you're
concerned about. But they certainly have, you know, they have narrowed a decision or
broadened it or reinterpreted. 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 try to play devil's hat. Well,
what about this area? What about that area? Could this be interpreted for that? And even
the questions that our argument are off on 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 reexamine, do a 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 unchecked 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 one 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. You know, there's very little foresight in these discussions about
what happens if the other party gets control. And we see that happening, right? We saw that
happening at the state level where, you know, governors 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 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.
So, looking broadly at the state of the court, there's been upheaval since, you know, Janet
Protisei was one and the majority did shift. We've seen, you know, new chief, well, two new chief
justices. Right. Amosh Barley 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
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 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 it was going to take it over,
he decided he was going to change what was happening. So he was going to 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 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. You know, 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, you know, and so we, you know,
Anne 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. I was, 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 to 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 face
and 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 a court. There's no question. You know, I'm just going to back up for a moment
so people understand we are different. Wisconsin is 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 could create chaos. And so actually our
founding fathers were wise, I think, to say, when one comes up. But 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 the court in terms of philosophy,
that that shifts when somebody key is up. This next year, that's not going to happen.
So, you know, it's going to be as people proceed from the outside of four or three split,
and it could become a five-two split. But that won't create the swing that we had over
Janipro say, which is election. And, you know, I think it doesn't affect the court in what
cases it takes or time in a case. 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 clock.
You know, who's going to be here? Can I delay it to the fall? 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 thing. You mentioned redistricting.
Obviously, there is a national issue of 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 participate 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 issue in a lot of
these, you know, 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 publicly say it again. Maybe it
will take it next. It will be a new justice, you know, and so maybe the court will take it.
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 have really out of the
issue. Okay. Anything else that you'd like to address? No, pretty thorough. All right. Well,
thank you so much for giving us time. You're welcome. You're welcome. Great.