For two decades, Wisconsin was a shining example of what an open court system could be. The state Supreme Court was one of the few in the nation that conducted deliberations in public.
Now that experiment in good government is over.
In June, justices voted to close the doors. No longer will residents get to watch them argue about arcane judicial policies and codes of ethics. They will make those decisions in secret, and the people can just live with whatever they decide, no questions answered.
It was the end of an era in which transparency built trust and allowed voters to make informed decisions when a justice came up for re-election every 10 years. Since the 1990s, Wisconsinites have been able to watch the state’s legal luminaries thoughtfully consider both complex and mundane issues.
Granted, often wisdom and restraint were absent. Justices were sometimes no better than churlish children in a schoolyard. They insulted and berated each other. There was even a physical altercation.
They weren’t building trust. They were undermining it. Transparency caused embarrassment.
Most people in similar circumstances would identify the problem as the behavior and work to change it. They might seek to develop a more collegial environment where justices could disagree respectfully, even across ideological lines. U.S. Supreme Court Justice Ruth Bader Ginsberg and the late Justice Antonin Scalia couldn’t have been much further apart ideologically, but they developed a famously close friendship. Surely, Wisconsin’s justices could strive for courtesy if not friendship.
Wisconsin’s justices aren’t most people. They identified transparency as the problem, not their behavior. So last month they changed the rules. Justices Pat Roggensack, Annette Ziegler, Michael Gableman, Rebecca Bradley and Daniel Kelly supported moving their bad behavior behind closed doors. Justices Shirley Abrahamson and Ann Walsh Bradley wisely opposed it.
To be clear, these are not deliberations in lawsuits and criminal cases argued before the court. This is not like a jury going into a room to hold a frank conversation that decides the fate of a defendant.
This is more like lawmakers in the Capitol writing laws. The justices are deliberating about policies and the ground rules that affect anyone caught up in the Wisconsin legal system, not specific cases.
Voters can send a message that they expect better from the state’s highest court. Wisconsin’s system of electing judges has serious problems, but in this case it could serve the people well.
Justice Michael Gableman has announced he will not seek re-election in 2018. At least three people have already declared their candidacy, and others could join them.
We will ask the judicial candidates about this decision and whether they support the public’s right to watch their government at work.
Voters should do the same and think twice before supporting someone who endorses secrecy over the public’s right to know.