The founders of the American experiment separated the powers of the federal government they established and encouraged a similar separation in the various states.
Ever conscious of the abuses committed against them by the British monarchy—which employed the false premise of a “divine right of kings” to place the whole of government at the service of a sovereign, they outlined a system of checks and balances that was supposed to counter the corruptions of empire and royalty.
Their great fear was that a political party arise and then use the power vested in it by a temporary electoral victory to grab complete control of the executive, legislative and judicial branches of government and use this combined authority not as a guard against corruption but the facilitator of it.
Those fears have now been fully realized in Wisconsin, where the crude power grabs of Republican Governor Scott Walker were initially facilitated by his minions in the Republican-controlled chambers of the state legislature, Assembly speaker Jeff Fitzgerald and his brother, Senate majority leader Scott Fitzgerald. As inept as they were subservient, the Fitzgerald brothers bumbled an attempt to pass legislation that was designed to strip public employees of their collective bargaining rights.
The failure of the Fitzgeralds to respect the state’s well-defined open meetings laws led to a decision by a respected circuit court judge, Maryann Sumi of Dane County, to declare the law invalid because it had not been properly passed. Frightened by the mass demonstrations opposing the law, and by the prospect that another vote in favor of the unpopular measure would encourage efforts to recall and remove Republican state senators, the Fitzgeralds did not want to carry the governor’s agenda again.
But the only way that could happen would be if the state Supreme Court were to overrule Judge Sumi and authorize implementation of the law.
But could the court be so corrupted that it would play the political games as demanded by Walker and the Fitzgeralds? That was hard to imagine, even in a time and place where governmental abuses have become so frequent that dissenting legislators and citizens now refer to the state as “Fitzwalkerstan.”
Racing to deliver the necessary cover before the Fitzegeralds were forced to insert Walker’s anti-labor language in the state budget bill, the court ruled as requested.
Four justices, who have allied themselves politically and ideologically with the governor and his conservative Republican allies, constructed a legal fantasy that said the legislature did not have to follow the open meetings law it had enacted. With that deed done, the jurists—including Justice David Prosser, a former Republican legislator and mentor to Walker who was narrowly re-elected after the “discovery” by a friendly county clerk of thousands of votes favoring his candidacy—declared that the law was valid and in effect.
It was a victory for Walker and the Fitzgeralds, but a huge defeat for the rule of law. And it provided a painful reminder that, in Wisconsin, there are no checks and balances on Governor Walker.
Legally dubious and politically tainted, the high court’s complex ruling drew dissents from three justices who are not aligned with the governor. Chief Justice Shirley Abrahamson charged that the members of the majority had opened themselves up to the charge that they “reached a pre-determined conclusion not based on the facts and the law, which undermines the majority’s ultimate decision.”
The senior jurist on the state’s highest court complained that, with their sweeping decision, the court majority "make their own findings of fact, mischaracterize the parties’ arguments, misinterpret statutes, minimize (if not eliminate) Wisconsin constitutional guarantees, and misstate case law, appearing to silently overrule case law dating back to at least 1891," Abrahamson wrote.
Abrahamson explained that she did not join the majority with regard to critical aspects of the ruling because of her belief that the case should have followed the normal appeal process. Instead, she warned, the court had taken original jurisdiction and issued a decision that gave the case “short shrift.”
And that was not the only place where the chief justice, who has served on the court for more than three decades, said the judical branch had fallen down.
“In rendering a decision, a court is to provide not merely an answer but also a reasoned, accurate explanation,” argued Abrahamson as she outlined her concerns. “A reasoned, accurate explanation is not an inconsequential nicety that this court may disregard for the sake of convenience or haste. It is the cornerstone of the legitimacy of judicial decision-making.”
With that cornerstone kicked out from beneath the judicial branch of state government, Fitzwalkerstan is now formally and fully without a system of checks and balances.
That reality could well become the central issue in the campaign to replace six Republican senators who have cast lockstep votes in favor of Walker’s anti-labor agenda. Only by recalling at least three of the Republicans and shifting control of the state Senate to the Democrats—or so the argument of Democratic campaigners goes—can a system of checks and balances be restored. And, only then, will “Fitzwalkerstan” cease to be, as Wisconsin is restored.