The early months of 1999 delivered remarkable drama for supreme court watchers, as exceedingly unusual accounts of discord among the justices spread through the media. Readers encountered revelations that Justice William Bablitch was working with two of his colleagues to gain support for a challenger to Chief Justice Shirley Abrahamson in the spring election. The motives of Bablitch and the others were said to include complaints that Abrahamson (1) made unilateral decisions in administering the court; (2) sought to display a picture of Lavinia Goodell (the first women admitted to practice law in the supreme court); (3) joined staffers the previous year for a one-time aerobics workout in the courtroom after hours; (4) had games deleted from the court’s computers; and (5) refused to invite Bablitch’s wife to a court-sponsored conference. Abrahamson’s defenders alleged that Bablitch was maneuvering to become chief justice himself, and they dismissed his complaints as misguided or petty.[1]
What made this rare display of the court’s dirty laundry all the more noteworthy was that Justices Abrahamson and Bablitch regularly voted together—either both in the majority or both dissenting—not only prior to the disputes but during the four years thereafter, until Justice Bablitch retired in the summer of 2003.
For instance, over the four terms from the summer of 1999 to the summer of 2003, Justice Abrahamson’s second-closest “ally” (after Justice AW Bradley) was Justice Bablitch, with whom she sided in 60% of non-unanimous decisions and 81% of all decisions. Justice Prosser, the next most likely member of the court to vote with Justice Abrahamson, did so in only 32% of non-unanimous decisions and 68% of all decisions.
But why revisit this now?
The Abrahamson/Bablitch saga comes to mind again because of a possible parallel with Justice Patience Roggensack and former Justice Daniel Kelly, currently seeking to regain a seat on the court. Here, too, we have a pair of justices who routinely voted together—just as frequently as Justices Abrahamson/Bablitch in all decisions (81%) and more often (71%) in non-unanimous decisions.
By itself, of course, this does not amount to a parallel because, unlike Abrahamson/Bablitch, the Roggensack/Kelly pair have not engaged in public criticism of each other. However, according to off-the-record accounts, relations between Justices Roggensack and Kelly became acrid behind the scenes as the result of what could be termed personality conflicts rather than differences over judicial philosophy.
To my knowledge, such privately-reported friction has not been explored in the press, but there are indications that it has credence. First, consider the present election campaign that will select Justice Roggensack’s successor. Clearly, she would prefer a conservative, and in February’s primary she had a choice of two—Kelly and Jennifer Dorow. She endorsed Dorow. More significantly, once Kelly defeated Dorow and qualified for April’s general election against a liberal opponent, Justice Roggensack declined to transfer her support to Kelly. In short, it is telling that so late in an electoral process whose outcome could annul much of her own judicial legacy, Justice Roggensack’s name does not appear when one clicks on the “endorsements” tab of the justicedanielkelly.com website.
Furthermore, back when they were both on the court, it seemed curious that Justice Roggensack did not join any of Justice Kelly’s numerous (42) separate opinions—while she did join separate opinions written by all of her other conservative colleagues.[2] For his part, Justice Kelly not only authored a stream of separate opinions, he also joined many (34) written by other justices. His first term found him endorsing one of Justice Roggensack’s separate opinions (and one by Justice Abrahamson),[3] but he never did so again during his remaining three years on the bench—a period in which he joined his other conservative colleagues regularly and, on three occasions, even the court’s liberals.[4]
Thus, as with Justices Abrahamson/Bablitch, we appear to have a second pair of justices whose judicial views overlapped a great deal but whose other differences were substantial enough to prompt one member of a pair to go so far as to endorse an electoral rival of the other member.
[1] See for example, “Bablitch Leading Trio Working to Oust Abrahamson,” Wisconsin State Journal, February 4, 1999; “Invite Spat Adds Fire to Court Feud; Did Abrahamson Snub Justice’s Wife?,” Capital Times, March 22, 1999; “Casualties in Court Feud? Bablitch: Some Justices May Quit,” Capital Times, February 18, 1999; “Four Tried to Reduce Powers of Chief Justice; Bablitch and Three Others Sought a Rule Transferring Authority to Handle Many Administrative Matters,” Wisconsin State Journal, February 13, 1999; and “Justice: We Did a Service; Bablitch Defends Airing Court Feud,” Capital Times, April 8, 1999.
[2] In contrast, Justice Bablitch joined 26 of Justice Abrahamson’s separate opinions during his last four terms on the court, and she joined six of his.
[3] He also joined in part another of Justice Abrahamson’s separate opinions.
[4] Justice Dallet twice and Justice AW Bradley once.
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A similarly interesting analysis (maybe ChatGPT could help?) is who, in their prime, would have prevailed in the WWE supreme court cage match: Kelly v. Bablitch? My lay person’s assessment (based on 2 interviews of court personnel) is that Kelly would have won, but Bablitch would have inflicted some damage with illegal eye gouging. Both justices, however, at the time of their exit from the court, would have been ineligible to enter the ring, given WWE’s cognitive pre-fight testing protocols.
It goes without saying, Ms. Goodell would have made quick work of both men, separately or combined.