Credit Wisconsin Supreme Court Justice Shirley Abrahamson for knowing how to keep a secret.
We learned Friday that Abrahamson has watched quietly throughout her decades-long tenure as Wisconsin legislators acted, time and again in her opinion, outside the limits of the state’s constitution.
How else to understand her agreement with Justice Rebecca Dallet that:
The Legislature unconstitutionally met in an “extraordinary session” in December 2018 and…[i]n order to uphold the constitutionality of the December 2018 extraordinary session, the majority opinion subverts the plain text…of the Wisconsin Constitution.
By signing Dallet’s dissenting opinion, but adding no comment of her own, Abrahamson was spared the task of explaining the apparent illegitimacy — in her view — of extraordinary sessions held on many occasions during the last four decades. (Justice Ann Walsh Bradley, first elected to the court in 1995, joined Abrahamson in concurring — without comment — in Dallet’s dissent.)
Former Democratic Assembly Speaker Tom Loftus recently wrote an op-ed in The Capital Times on the history and constitutional basis for extraordinary sessions. He said, in part:
[T]he legislature is always in session. The reality of one continuous two- year session was formally acknowledged by a constitutional amendment ratified in April 1968: “Shall Article IV, Section 11 of the Constitution be amended to permit the Legislature to meet in regular session oftener than once in two years?” The amendment was ratified in a 670,757 to 267,997 vote.
The Legislature, under the Constitution, governs itself — setting its own rules of organization, procedures and calendar. So an extraordinary session is simply a floor period added to the dates adopted at the beginning of the two-year session, but, like a special session, it is restricted in subject matter.
Extraordinary sessions came to be part of the Legislature’s way of doing business when I was Assembly speaker and Tommy Thompson was minority leader. The leaders call the session dates and the subject.
The legal staff of the nonpartisan Legislative Reference Bureau has addressed this issue on at least two occasions, once in the late 1990s and again earlier this year. Abrahamson and Bradley must have shuddered when reading the 1998 LRB report, but they kept their concerns to themselves all these years — until last Friday.
There is, of course, an alternative explanation. Both Abrahamson and Bradley never saw a problem with extraordinary sessions until one directly pitted a Republican legislature against a newly elected Democratic governor. Their concurrence with Dallet’s dissent is a reminder of how Wisconsin’s high court has become, for the left, a venue for undoing lawful legislative action with which it disagrees.
As Justice Daniel Kelly seeks election to a full term next year, the long-term implications of Dallet’s outcome-driven dissent are clear. Had Justice-elect Brian Hagedorn not prevailed in the April 1 election, the left would be a single vote away from a Supreme Court willing to do its bidding.
