The Prospect of Open Deliberations in the Wisconsin Supreme Court
Oldfather, Chad, Judicature
Recent episodes have underscored a lack of collegiality among the justices on the Wisconsin Supreme Court, including most prominently an alleged assault of one justice by another. In response, Chief Justice Shirley Abrahamson proposed a menu of institutional reforms for her colleagues' consideration, with the stated goal Of enhancing collegiality. She expressly called on each justice's commitment "to promoting civility and safety in our workplace; to maintaining personal control in our language, demeanor, temperament, and conduct On and off the bench; to bolstering the public trust arid confidence in the Court and our judicial system; and to upholding the Court's long-standing reputation for excellence."
The chief justice's proposals included the issuance of a joint statement pledging greater efforts toward collegiality, the hiring of experts on conflict resolution and small group dynamics, and a number of modifications to the standards and mechanisms related to recusals. But the one that received the most attention was her suggestion that the court open its deliberations to the public.
There are, of course, many ways in which a court might make its deliberations open, and Chief Justice Abrahamson presented a number of options, including holding the court's deliberations in a room open to the public, holding the deliberations in a closed room but streaming live video, or recording the court's deliberations for later release. As most observers expected, the other justices rejected these proposals. Justice David Prosser suggested that open deliberations would "stifle candor." In similar fashion, Justice N. Patrick Crooks alluded to the clichéd parallel between the making of law and sausage.
While open deliberation will not become a reality at the court, Chief Justice Abrahamson's proposal prompts deeper consideration of precisely why closed judicial deliberation is the uniform practice in American appellate courts. After all, courts in some countries do deliberate in public. The Supreme Court of Brazil, for example, holds its deliberations in public and on live television, and publishes transcripts of the deliberations together with its rulings. (The court also has its own Twitter feed and YouTube channel.) Closer to home, at least in terms Of our systemic heritage, English courts have long operated according to a tradition of orali ty in which every step of the adjudicative process takes place in public. The underlying idea, according to Professor Robert Martineau, is that "[t]he faithful observance of the tradition ... guarantees the accountability of English justice and maintains public confidence in it."
Thè sense that open deliberations would be problematic seems to rest primarily on the understanding that there is something valuable about secret deliberations that would be lost if the process were opened. The fear is that justices - perhaps especially those in an elective system - -would be wary of articulating positions, even tentatively, that might be used against them in a later campaign. While egregious acts of non-collegiality would undoubtedly be deterred, collegiality in a deeper sense might suffer. Whatever legitimate exchanges of ideas take place among the justices would be pushed underground, and would not occur among the whole court. …