On Thursday, the Wisconsin high court handed Gov. Scott Walker (R) what is likely the decisive win in favor of the state’s union-busting law. In a divided ruling, the court upheld a state law that stripped collective bargaining rights for most of the state’s public workers. The ruling was a major blow to unions, rejecting plaintiffs’ arguments that they have a right to organize and ruling against a law that sparked statewide protests and recall elections after its passage in 2011. But it may also promote distrust in the state’s judicial system, given ethical complaints against the decision’s author.
The author of the majority opinion, Justice Michael Gableman, has been embroiled in a scandal over charges that he accepted thousands of dollars in free legal services from a law firm that frequently appears before him. In fact, this very same law firm was initially representing the state in the case to uphold the union-busting law. Wisconsin judicial ethics law prohibits judges from accepting gifts from someone who is likely to appear before them.
Gableman sought the assistance of the law firm in the first place because he had already gotten himself in ethical hot water. During an election campaign in which he beat the state’s only African American justice, Louis Butler, he blasted Butler’s work as a public defender by mischaracterizing his role representing indigent defendants as aiming to “put criminals on the street” and falsely claiming that Butler had exploited a “loophole” to release a girl’s rapist. A panel of judges split 3–3 on whether to discipline Gableman for lying, and the tie meant he was never punished. The win was the first time an incumbent justice had been unseated in 41 years.
Gableman’s tactic comes out of a contentious system of judicial elections that has been flooded with campaign donations, much of it coming from the independent contributors associated with the conservative group Americans for Prosperity. Several of Gableman’s conservative colleagues who signed onto Gableman’s opinion also faced ethics allegations — before they voted to remove the chair of the ethics commission.
On Wednesday, Gableman sided with the state even though the case was initially argued by the same law firm, Michael Best & Friedrich, that offered him free services. He held that the First Amendment right to free association does not not protect the public employees challenging the state’s anti-collective bargaining law, reversing a 2012 lower court decision.
“No matter the limitations or ‘burdens’ a legislative enactment places on the collective bargaining process, collective bargaining remains a creation of legislative grace and not constitutional obligation,” he wrote for a four-justice majority, overturning a lower court’s 2012 decision to invalidate parts of the law.
In dissent, Justice Ann Walsh Bradley excoriated Gableman for ruling against the plaintiffs by misrepresenting their arguments. “The result of the majority’s dodge is the needless diminution of multiple constitutional rights,” she writes, noting that plaintiffs’ “actual argument” that they have a right to organize rather than to bargain under the First Amendment is “based on the well-established premise that there is a constitutional right to organize as a collective bargaining unit.”
In 2012 when the Supreme Court first took up the lawsuit, Gableman refused to heed public calls for him to recuse himself from the suit. The County District Attorney even asked the Supreme Court to reconsider its decision in light of the ethical breach. That case was a 4–3 ruling and would have been altered by Gableman’s recusal.
In the lead-up to that ruling, another scandal emerged over an argument that ended with one justice allegedly choking another. Sources said the argument was over the collective bargaining ruling, but Justice David Prosser, the justice accused of choking a colleague, dodged ethics charges after the review panel was stacked in his favor. Prosser has reportedly been the beneficiary of millions of dollars in contributions from conservative and big-business groups.
Wednesday’s decision was 5–2, with one justice concurring only in the ruling while lamenting the impact that the law will have on unions. So Gableman’s recusal alone would not have changed the outcome, although it could have changed the holding.