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Friday, September 09, 2011

The Prospect of Open Deliberations in the Wisconsin Supreme Court

The Wisconsin Supreme Court has – if I may understate the matter – been in the news a bit recently.  The latest out of Madison is Chief Justice Shirley Abrahamson’s proposal to open the court’s deliberations to the public.  My initial reaction to this was, like pretty much everyone else’s, negative.  My instinct was that open deliberations paired with an elected judiciary would be a recipe for either trouble or, more likely, completely meaningless deliberations as justices would be unwilling to experiment with potential dispositions and theories in the public eye.

On reflection, though, I find myself more intrigued by the idea, and less willing to dismiss it out of hand.  It occurs to me that what might result is a variation on the English tradition of seriatim, oral opinions, with each justice showing up for “deliberation” with a prepared statement of his or her position.  That the proposal likely wouldn’t foster “real” deliberation might not be all that problematic if it’s true, as many judges have suggested, that meaningful deliberation is more of a myth than a reality.  At the same time, it might create a greater incentive for each justice to have done his or her homework, so as to have something thoughtful to say for the public record.

Any such change would of course also have collateral consequences that would need to be identified and taken into account.  Here’s one that occurred to me.  The Wisconsin Supreme Court is required by statute to “decide all cases in writing.”  A public record of the court’s deliberations would create the potential for resort to what Adrian Vermeule has called “Judicial History” – drawing on evidence of what took place in the decisional process in order to illuminate the meaning of a judicial opinion.  It would certainly be tempting as an advocate to draw upon individual justices’ statements in deliberations in prior cases.  Dealing with that would prompt a debate that would, in broad form at least, recapitulate the “unpublished opinions” brouhaha from a decade or so ago.

These are just a few preliminary thoughts.  I’d be interested to hear others’ thoughts on the potential effects of open deliberations.


Posted by Chad Oldfather on September 9, 2011 at 03:58 PM | Permalink


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The concept of Judicial History would not be applicable here. In many states, regulatory bodies are required to deliberate openly due to the various sunshine laws. However, the relevant statutes usually stand usually require such regulatory to "speak through its orders." Most courts have found that the legal requirement to speak through orders precludes the introduction of the deliberation to interpret the the regulatory order. I would think this is would be no different than for open deliberations of a court (although I think it is a terribly stupid idea).

Legislative history is qualitatively different and legislating has built in mechanisms, such as committee reports, that almost beg for legislative intent to be part of any analysis. This should not be the same with courts.

Posted by: anon | Sep 11, 2011 2:27:23 PM

What a useless, counter-productive proposal. Opening the deliberations to the public will have the same effect on the court as the Government in the Sunshine Act has had on federal agencies: the "real" deliberations, if they happen at all, will take place prior to the staged, public deliberations. And allowing the Justices' comments or written statements released at the deliberations to be used in subsequent cases -- for example, would they have precedential effect??? -- would only serve to undermine the clarity and legal status of the court's ensuing, formal "opinion." The only thing worse than returning to a world of seriatim opinions would be creating a world in which there are both seriatim opinions and a formal "opinion of the court."

Posted by: Norman Williams | Sep 10, 2011 12:23:35 PM

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