Let Democracy Rule on Supreme Court

By Richard M. Esenberg
President & General Counsel
Wisconsin Institute for Law & Liberty
Next week, Wisconsin voters will be asked to vote on a proposed constitutional amendment changing the way in which the Chief Justice of the Wisconsin Supreme Court is chosen. Currently, the most senior justice automatically gets the job and keeps it for as long as she wants it and remains on the court. The proposed amendment would have members of the court elect the Chief for a fixed term.
The Chief Justice has important administrative functions with respect to both the Supreme Court and the entire judicial system.  To do the job well, she must have the ability to lead and manage a group of six colleagues over which she has no real authority and who have the ability to override her actions at any time. This requires more finesse than command. It takes a willingness to compromise or modulate when one wants to stand on principle and speak bluntly. You can be, as our current Chief Justice often is, the smartest kid in the room, but you can rarely show it. In short, one must be politically adept in an extremely nuanced way. Herding cats is not an inapt analogy.
Not everyone can do this. Not everyone would want to.  I can think of people who I believe are fantastic jurists – Antonin Scalia, Clarence Roberts – who might be very poor chief justices.  It would be only happenstance – pure blind luck – for the person who has been on the Court the longest to be the most adept at leading his six headstrong colleagues.
Most importantly, it is impossible for any chief justice, no matter how administratively astute or subtly politic, to do the job well if he or she lacks the confidence and support of his or her colleagues. Strong-minded lawyers who have been elected in their own right cannot be made to come along; they have to want to. Any rational way of selecting a chief justice must have a way for members of the court to replace a chief justice who has lost their support.
So it is not surprising that, of the 49 other states, precisely four do what we do – make the most senior justice the Chief for as long as he or she remains on the court.  (Another two rotate the position in order of seniority.) In short, the merit of our system is so elusive that the overwhelming majority of states have declined to emulate us.
One argument against election of the chief justice by members of the Court is that it might engender rivalries and animosities among the justices who must now compete for the job. But our Court may be the example that disproves this assertion. It is hard to see how it could be any more divided.  Twenty-two states provide for election of the chief justice by the court and none seem to have faced the divisiveness that Wisconsin, with its supposedly “nonpolitical” seniority system, has experienced. It seems more likely that the price paid for getting the choice of a chief justice wrong – selecting someone who lacks the skill that it takes to manage assertive and independent colleagues or who, for whatever reason, has lost their support – is far worse than the side effects of competition for the job.
Opponents of the amendment argue that it would “disenfranchise” voters. There are some states in which voters elect a Chief Justice, but Wisconsin is not one of them. It is nonsense to argue that, in re-electing whomever happens to be the current chief justice, voters are expressing a preference that she, as opposed to one of her colleagues, occupy that post. They have not been asked that choice. Similarly, when the post becomes vacant, voters may not select the new Chief Justice. Automatically elevating the most senior member is not an exercise of democracy; it is antithetical to it.
Some will argue that we ought not to change what has “worked.” But it’s not clear that it always has “worked.” For example, a significant number of observers believe that it is not working now. They argue that, for whatever reason, current Chief Justice Shirley Abrahamson does not have the confidence of the majority of her colleagues. Her tenure as Chief has been marked by conflicts with her colleagues.  In 1999, for example, a majority of her colleagues, including the quite liberal Justice William Bablitch, supported her opponent.
Others disagree. But whatever one thinks of the current Chief Justice, her tenure on the Court is near its end. Her current term expires in four years. At 85, she is unlikely to seek re-election. The amendment will quickly apply to a court on which she is no longer a member. Current divisions on the Court may be an argument for the amendment, but the issue is broader than that. It is, simply and crucially, a question of good government.