Wisconsin Justice Brian Hagedorn Correct: “The Business Of Courts Is Public Business”

The ruling Friday from the Wisconsin State Supreme Court was direct and to the point. The request from those bringing suit against the Madison School District to remain anonymous was denied in a case dealing with a gender identity policy. They must disclose their identities to attorneys arguing the case. The court did allow them to proceed using pseudonyms publicly.

There are many perspectives that can be had about the policy and its implications on both transgender youth, and parents or guardians of those children. I will not wade into that fight, but rather wish to write about the process of open and transparent government that must be adhered to if all are to be treated and viewed fairly.

If our system of government is to be open and transparent there can be no justification for keeping the names of those seeking redress through the court system secret.  As Justice Brian Hagedorn wrote in the majority opinion, “While we protect certain vulnerable legal participants, such as children and crime victims, the business of courts is public business, and as such is presumed to remain open and available to the public.”

If one can not stand in the light of day to their convictions when seeking a remedy in the court system then perhaps there is a problem with the position that they are privately taking. 

It should be remembered John Hancock used a large bold script when signing the Declaration of Independence, so large in fact that ”…fat George can read it without his spectacles.”  That should be the model of our convictions today.  If people can not publically stand by their views as expressed in court proceedings and are ashamed of having their names made known in the press or seen in the public square, we need to ask why they seek cover?

When one lobbies in any fashion for the government to take any action it should be public knowledge.  The consequences of using a conservative law practice to attempt, through the court process, to hide and harbor those who bring a suit when perhaps they are not even living in the school district or have students in our Madison schools run counter to the openness that our government should always strive to maintain.  (The same holds true for the individual who signs a petition concerning a heated issue.)

This issue of anonymity should not be a conservative vs. liberal issue but instead viewed as one of strict adherence to higher ideals. A good government issue. A process concern about how to proceed when our judicial system operates.

Supreme Court Justice Antonin Scalia, a favorite of conservatives, spoke to this issue in oral arguments regarding individuals seeking anonymity for signing a petition to get policy matters on the ballot. The oral argument was in John Doe # 1, et al., v. Reed, et al. (09-559)

Declaring that the rough-and-tumble of democracy is not for the faint-hearted, what Scalia referred to as the “touchy, feely” sensitivity of some political activists, the Justice said “you can’t run a democracy” with political activity behind a First Amendment shroud.  “You are asking us to enter into a whole new field,” Scalia told James Bopp Jr., the lawyer for Washington State signers of an anti-gay rights petition.  Politics, the Justice went on, “takes a certain amount of civic courage.  The First Amendment does not protect you from civic discourse — or even from nasty phone calls.” 

Scalia was most correct with that point.

Let me be most direct. The higher ideals of our state and the judicial process can not be made hostage to the fears of retaliation.  If that had been the case at the beginning of our national story Thomas Jefferson would never have set quill to parchment.

Would it not be great if, in the face of this needless court case concerning Madison schools, brought by people who may not even have any direct connection to the district, we could fully recognize the need for openness and transparency about how our court system must continually operate?

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Some Wisconsin Progressives Must Share Blame For Supreme Court Abortion Debacle

It is fair to say that conservative justices on the Supreme Court embraced an ideological position from which they ruled when handing down the decision that undid the 1973 Roe v. Wade decision. No one can pretend the ruling was framed with only the law in mind, as the playbook for this result was fashioned from the likes of the Federalist Society along with the decades of work by politicians such as Minority Leader Mitch McConnell. They sought an outcome from the Court and did everything in their power to have it realized. Even if the law and precedent had to be stepped over so to achieve it.

The blowback of the citizenry that has occurred over the past several days is not surprising. We are seeing only the start of what will be a relentless and searing rhetorical effort to steer voters to the ballot box in this fall’s mid-term elections. Whether or not the issue of abortion is so baked into the partisan DNA of the voters already, or if there is room to energize more votes for Democrats in key races will be what politicos watch play out this summer and fall.

While conservatives on the Court are correctly taking the bulk of the anger and outrage since Friday morning, it does need to be pointed out there is another segment of the nation that also needs to be accountable for the tossing away of Roe. Those people were the purists in the Democratic Party or that segment of the independent vote that could not see the wisdom of supporting Hillary Clinton in 2016.

It was noted often on this blog how I felt about the candidacy of Bernie Sanders. At the time of the 2016 Democratic Convention, I stated the following.

Bernie Sanders was out of the race for the nomination by mid-March with no mathematical way forward.  Still, however, the socialist thought he could take over the Democratic Party.  Instead of bowing out gracefully, he bore down harder still into the candidacy of Hillary Clinton.

It also should not come as any surprise to those who supported Sanders for the nomination that races are tough and politics means someone wins and someone loses.  If one is not aware of that simple fact it means they really should not be weighing in on the larger and far more complex issues that face the nation.

Basic politics underscores that no candidate in good conscience would seek to undermine the eventual nominee of the party. The results of such a strategy are dangerous. Continued bombast from the far left about Clinton aided in too many of them sitting out the 2016 presidential election or voting for someone that had zero chance of winning.

Clearly, pragmatism was not underlined as a needed component in politics and governing when civics was being taught in some classrooms. But it is very much an essential ingredient to our political dynamics, and when it is missing or willingly tossed aside, we then have election outcomes that produce a Donald Trump sitting in the Oval Office.

In Wisconsin in 2016, Democrats needed roughly 20,000 more votes to carry it for Clinton. The numbers were roughly the same for Michigan and Pennsylvania.  Had those three states found their common sense the electoral college would have been 270 for Hillary Clinton. As I often write on CP, not only must we vote—but we must always vote intelligently,

Consider that in Wisconsin the amount Clinton lost by was less than the 30,981 votes Green Party presidential candidate Jill Stein garnered statewide to get 1.1 percent of the total.  Libertarian Party presidential candidate Gary Johnson took 3.6 percent of the statewide total or 106,434 votes.   

As a result of Trump winning the presidency, he had the opportunity to name three Supreme Court appointments, and those three justices were critical to the ruling that now places women across large swaths of the nation no longer being able to make their own reproductive health decisions.

There is absolutely a need to hold conservatives accountable for what was handed down from the Court. But if we are honest, there also must be a recognition of those progressives and independents who cared more about some notion of ‘purity’, than for the greater political and policy needs of the nation. Those people can try to duck, weave, and spin their yarns but they, too, are very much a part of the reason Roe was undermined.

Newspaper Front Pages: Ideological Blow From Supreme Court Against Roe v. Wade

Friday a majority of the males on the United States Supreme Court stepped away from the law and squarely mired themselves into their political, cultural, and religious beliefs as they dealt a blow not only to abortion rights in the nation, but also to the longheld understanding regarding the importance of precedence guiding our judicial system.

This morning I gathered up a wide cross-section of front pages of newspapers from this nation, including Hawaii, to underscore the seismic consequence of placing ideologues on the high court. As can be seen on the front page of the San Francisco Chronicle the lead heading also noted the sinister concurring opinion of Justice Clarence Thomas as he threatened both sales of contraceptives in the nation, along with the right to gay marriage.

It is also worth noting that Republican Maine Senator Susan Collins is the only elected official that I can find (from about 100 papers) being placed on the front page (Portland Press Herald) for her spineless behavior during confirmation hearings for justices to the Court.

The nation has been offered too many examples of Collins’ glibness and silliness as she prattles on about being duped by others. I know she was unsettled Friday by the court ruling, was dismayed this morning, and surely will be distressed by cocktail hour. Once again we are reminded of how delusional she continues to be about her senatorial duties.

This is the same conservative senator who actually said after the first impeachment process of Donald Trump that “I believe that the president has learned from this case”. There is no way someone like that should not have a guardian.

Now, here is a wide selection of how the nation is reading of the assault on abortion rights in the United States.

Justice Thomas Writes Opinion For Rolling Back Gay Marriage, Contraceptive Sales, But Did Not Mention Loving v. Virginia

There is plenty of reason to feel ashamed of the Supreme Court today for its purely partisan and doctrinaire ruling which overturned Roe. v. Wade. With no regard for the social realities of the early 21st century, a majority of the males on the court tossed aside precedent and dived into the idealogic depths. They view women as birthing chambers, as the powerfully worded dissent correctly stated, “from the very moment of fertilization, a woman has no rights to speak of.”

While the abortion ruling was one the nation knew was coming for a couple months, the gravity of the ruling and the explosion of emotions and political consequences which will follow surely will be quite unlike anything we have witnessed before in the nation. At a time the political divides are already severe, and the anger among citizens is at an intense level, the court opted for a highly partisan and purely ideological ruling rather than a measured and competent address of the issue at hand.

As if the ruling itself was not jarring and threatening enough to the nation, Justice Clarence Thomas in his cold and calculating conservative concurring opinion called for overturning the constitutional rights the court had affirmed for access to contraceptives and LGBTQ rights. This, too, was not totally a surprise as many, including this blog, have argued since the leak of today’s ruling, that they were the next steps of the conservatives in the judiciary. Some commented on this site that I was basically exaggerating.

But those registering concern about the undermining and stripping away of other rulings were not just blowing smoke.

Reading the separate opinion today by Thomas allowed us to understand his initial view that the decision in Dobbs v. Jackson Women’s Health Organization did not directly affect any rights besides abortion. But then in his customary angry nature that is often seen while sitting petulantly in silence during oral arguments, or his 19th-century views when writing, he argued that the constitution’s Due Process Clause does not secure a right to an abortion or any other substantive rights, and he urged the court to apply that reasoning to other landmark cases.

Thomas stunningly wrote, “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”

Oddly, Thomas left out the famed Loving v. Virginia, the landmark civil rights decision that ruled that laws banning interracial marriage violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U.S. Constitution. His marriage seemed not to need judicial review.

As we know from years of following the Court and also following legal scholars and noted writers the reckless action today that produced a tingling thrill for conservatives when overturning the landmark decades-old abortion decision, now leaves other precedents vulnerable.

I fully understand that the typical person in Topeka or Green Bay is not pondering the long-term consequences of today’s ruling. But those who follow the cases at the Supreme Court and the politics of moving certain cases forward, and the means by which they make such a journey, do pay attention.

That is why it was sophomoric and utterly ridiculous for anyone to claim two months ago that gay people in our nation had nothing to worry about regarding our marriage rights. What we warned was a possibility was put into writing today by a Supreme Court Justice.

A black man who was able to marry a white woman because of a Supreme court ruling.

Irony is very much alive.

One Leaker…Two Leakers…And Three Leaks…Supreme Court Abortion Draft Makes For Mystery

Thy best blog spot for Supreme Court news—even when a leaked draft to oveturn Roe v. Wade is not making national headlines–is SCOTUSblog.

The New York Times referenced The Wall Street Journal today in their court coverage, as does the post below from this blog.

Start from the premise that there were actually (at least) two leakers, and three leaks. The first leak was to the Wall Street Journal editorial board last week. In substance, it was that the court had voted to overrule Roe v. Wade, but that the precise outcome remains in doubt because Chief Justice John Roberts is trying to persuade either Justice Brett Kavanaugh or Justice Amy Coney Barrett to a more moderate position that would uphold the Mississippi abortion restriction without formally overturning Roe.

While not formally presented as relying on a leak, the editorial transparently does. The most obvious example is that it predicts that Alito is drafting a majority opinion to overrule Roe, but gives no explanation for that prediction and none is apparent. We now know that Alito did draft that opinion.

The second leak was to Politico. Likely within the past few days, a person familiar with the court’s deliberations told them that five members of the court – Alito, Kavanaugh, and Barrett, along with Justices Clarence Thomas and Neil Gorsuch – originally voted to overturn Roe and that remains the current vote. In addition, the position of the chief justice is unclear. The remaining justices are dissenting.

The third leak was also to Politico. It was presumably – but not certainly – by the same person. Someone provided them with Alito’s Feb. 10 draft opinion.

It is also important to look at the leak of the opinion through the lens of the fact that someone – almost certainly a conservative – had just before leaked the court’s tentative decision and the state of the voting to The Wall Street Journal. That leak was itself an extraordinary and unethical breach of confidences and certainly caused very deep concern inside the court.

My guess is that someone on the left felt somewhat justified in releasing the opinion in response. Through the opinion, one would see what the Journal was saying Kavanaugh and Barrett were considering. That leak was a historically unprecedented violation of the deepest and most solemn trust among the justices and the court’s staff. It wounded the institution.

For followers of the Court and politicos alike, this has been a week not short on drama. The story grows as a nation simmers, tensions rise, and our democracy shudders with concern about what will follow.

And so it goes.

Conservatives May Get Roe Reversal, But Public Is Mighty Angry At GOP

I have been closely following the huge waves resulting from the explosive news of the leaked Supreme Court draft regarding an attempt to destroy Roe v. Wade. Each day, there is a raft of truly well-thought-out articles and analyses about the story first reported in Politico. Such information about a legal matter that was settled law for 50 years regarding women being in control of their own reproductive health care had to be reported. Once the information was made known to a reporter(s) and able to be authenticated by the news operation there was a professional duty to report such a powerful development to the nation.

As I make my way through the news reports what most intrigues me is the larger questions at play. First, is the matter of additional strain on our democracy that this highly-combustible and seemingly open-ended eruption will have on a nation that is already so fraught with division and open rancor.

Second, is the way the Supreme Court, and perhaps the justice system as a whole will be viewed as a corrupt bargain struck by powerful conservative players in partisan positions.

The third reason I am pressed closely to this news is how the ramifications of undermining privacy within the framework of Roe will potentially impact the strides this nation has made with gay rights. To pretend that Justice Alito is any more sincere about not undermining my marriage than he is about the precedent with women’s health rights would be laughable if not so damn serious.

What we do know is the calculations of a political and legal strategy conservatives have schemed over and blatantly exercised has likely born fruit with the undermining of Roe. Where this mindset moves next is the issue that has generated much coverage since Monday.

Roxane Gay wrote a strongly worded Op-Ed piece in today’s New York Times.

I do not know where this retraction of civil rights will end, but I do know it will go down as a milestone in a decades-long conservative campaign to force a country of 330 million people to abide by a bigoted set of ideologies. This movement seeks to rule by hollow theocracy, despite our constitutional separation of church and state. The people behind this campaign do not represent the majority of this country, and they know it, so they consistently try to undermine the democratic process. They attack voting rights, gerrymander voting districts and shove unpopular legislation through so that they can live in a world of their choosing and hoard as much power and wealth as possible.

Conservative columnist S. E. Cupp wrote a perfectly toned article about the ramifications for the court and the nation this week.

Whatever you think of the leak, and however you come down on abortion, this news is deeply troubling and has vast implications, not just for women but all American voters. And it’s just another in a long line of chilling consequences from one election in 2016, an election that in so many unforgivable and irreparable ways, shredded the democratic institutions that hold this country up.

Make no mistake about her final paragraph in the column.

The Republican partisan strike on the Supreme Court in 2016 was nothing less than the weaponizing of the judiciary. To have ‘conservatives’ pretend they still have any true claim to that word is bizarre. When Senate Majority Leader McConnell, in the face of an open seat on the Court, stated that “people should have a voice in the selection of their next Supreme court justice” conservative principles of governing were discarded and replaced by raw power.

For those who are true conservatives, the actions of their Republican senators in 2016, must have been painful as stated principles gave way to partisan moves. To not have a hearing on a nominee named in March of 2016 and then wait for almost a year for a new justice to be seated–after an election season had passed–is just what it looks like.

A partisan power play of the most damaging kind to the nation.

During a recent 28-year period in this nation–or to put that into the lingo of politicos–seven presidential election cycles–Republican presidential candidates had won the popular vote only once. Yet those white men appointed six of the nine justices. Then the GOP senate majority cast their votes for conservative nominees against a vastly changing nation demographically, socially, and culturally.

The nation is now royally ticked off.

The folly and pure hubris of conservatives taking reckless actions with our democracy are now coming home to roost. Beware what one seeks, the old saying goes, as you may actually get it.

And so it goes.

Why Journalism And Anonymous Sources Matter, Supreme Court’s Draft On Roe V. Wade Makes Point

We are told by some partisans that news sources are to be distrusted, reporters are not integral to democracy, and that there are even ‘alternative facts’.

Late Monday evening, all those lines fell faster than Russians on the Ukraine battlefield.

It was reported by Politico the Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito.

The ramifications of this story are enormous. Not only for health care rights for women, but also for privacy being understood, for decades, as an unenumerated right. Privacy has been a foundation for several large court decisions from the right to use contraception, to engage in private consensual sexual activity, and to marry someone of the same sex.

Make no mistake about how the legal weight of this abortion ruling could move the court going forward.

While all these issues and many more will be debated at length starting with Tuesday morning coffee in homes around the nation, I wish to give credit to the journalism profession, and specifically two reporters.

Josh Gerstein and Alexander Ward.

We all should be proud of how they did their job with this story.

It needs to be noted that these journalists not only reported the story but also gave the full rounded coverage by writing that “it’s unclear if there have been subsequent changes to the draft” since February. They were not aiming for going beyond the fact the draft is a product from February.

They also fully grasped the gravity of the story surely being one of the newsroom’s biggest scoops and surely the biggest headline of their lives. They wrote that “No draft decision in the modern history of the court has been disclosed publicly while a case was still pending.”

The news about the court draft was able to be reported by the reporters due to the role of an anonymous source. It is these sources who are vital to a fuller understanding of what our government does and journalists are doing their job by then reporting on the information once it is firmly understood to have validity.

I understand that most people are not sitting around their living rooms contemplating anonymous sources. I can imagine how conservative media will be apoplectic today and feverishly disdainful of this news story, and how it was obtained.

To those who do not understand the role of anonymous sources, I have one name to add to this post.

Mark Felt.

It is absolutely true to say that had Felt not been an anonymous source there very well would not have been a Watergate story as we have come to know. It was “Deep Throat’ who alerted Bob Woodward in those parking garage conversations that presidential abuse was running rampant in the Nixon White House.

The pursuit of news, facts…the truth… is what reporters do. And anonymous sources are very much a way to allow the public to know what their government is doing.

And so it goes.

Our Politics Smolder, Democracy Suffers

There is much to be alarmed about when reading the newspapers from day-to-day. Eastern Europe is ablaze, war crimes mount, and a madman is still alive in Moscow. But closer to home we have issues that tear at the fabric of our democracy, with the latest example coming from Republican Senator Lindsey Graham.

This week he stated Republicans would not have held hearings on Judge Ketanji Brown Jackson’s nomination to the Supreme Court if they held a majority in the Senate.

“If we get back the Senate, and we’re in charge of this body, and there’s judicial openings, we will talk to our colleagues on the other side,” Graham said at a Senate Judiciary Committee hearing for Jackson’s nomination. “But if we were in charge, she would not have been before this committee.”

Such is our politics in 2022. As a decades-long politico, I am embarrassed about the condition in which we now find ourselves. We can track the history of how we arrived at this place, and while there is plenty of specifics that can be placed on each party, that does not take away the fact that the above statement from Graham was reprehensible.

By the end of this week, the Senate could very well confirm the first Black woman to the Supreme Court. That is a significant stride for a nation that long had only white men holding those seats. Rather than honoring that moment or understanding a president has the right to his appointments, barring some egregious or illegal behavior on the part of the nominee, we instead are witnessing a very low moment in our politics.

(For the record, I have still not figured out what took place upon the death of Senator John McCain, a long-time friend of the South Carolina Senator, which unleashed a continual series of outrageous comments and behavior.)

I have long enjoyed the court nominees over the decades facing the Judiciary Committee and having views shared concerning how the law should be reasoned, probing into if and how the Constitution was a living document, and how precedent weighs into guiding authority for deciding subsequent cases. But the hearings for Ketanji Brown Jackson were not what the public deserved, as they were not able to learn anything of substance over the four days.

What we were presented with, all too often, was base low-ball behavior.

I get it that the minority wants to be anything other than the minority. I get it that political points need to scored at some level, but the disrespectful questions, and then in some cases, the lack of a Republican listening to Jackson’s full response showcased what is currently wrong with our politics.

Not for the first time does this blog desire our conversations with each other to be more elevated. This blog has called out Madison radio personalities for low-brow on-air behavior, a president for cursing in public, and now the display our nation witnessed in the Judiciary Committee.

What strikes me, and I suspect a wide swath of the nation when it comes to Senate votes for court nominees, is the bipartisan nature we once enjoyed when placing new people on the bench. Here’s how our politics looked with those votes for court nominees going back to Antonin Scalia’s confirmation in 1986.

TAKE NOTE: Scalia had been the most celebrated justice on the right. He got 98 votes in his 1986 confirmation. The most celebrated justice on the left, Ruth Bader Ginsburg, got 96 votes in 1993.

What Graham said about the future of our political process in Washington is truly disturbing. How many judges nominated by President Biden will then-Majority Leader McConnell allow to be confirmed in a GOP majority chamber? Well, apparently the answer is zero. And that is simply destructive to democracy.

Our Founding Fathers envisioned several examples of possible dangerous behavior to democracy and placed solutions to them within the Constitution. But they simply could not have fathomed the degree of partisanship currently running through the Republican Party. Partisanship so deep and corrosive it would harm the nation itself.

We really do need to find some more ‘John McCains’ within the Republican Party to keep the ‘Lindsey Grahams’ tethered to democracy. Our nation demands it.

And so it goes.