Debate Me, You Cowards

The other day, the Wisconsin Supreme Court (two weeks away from Janet Protasiewicz taking her seat on the bench and flipping the court's 4-3 majority) denied a request by the Wisconsin Bar to create a CLE category for DEIA (diversity, equity, inclusion, and access) credit. "DEIA courses would address “the subject of diversity, equity, inclusion, access, or recognition of bias, which includes topics addressing diversity and inclusion in the legal system of all persons regardless of age, race, ethnicity, religion, national origin, gender, sexual orientation, gender identity, or disabilities and topics designed to educate attorneys on the recognition and reduction of bias."

The court's denial, joined by the conservative faction, was a short per curiam opinion. The liberal coalition's dissent was likewise short, focusing on the Court declining to give the matter even a hearing which, under the Court's standard rules, should have been offered assuming the petition had "arguable merit". Since many states have DEI CLE credit akin to what the Bar was proposing in Wisconsin, the petition clearly had at least "arguable merit" and should have gotten a hearing.

(Underneath all of this is the imminent change in the Court's partisan composition. Scheduling a hearing would have pushed the decision back past the point where Judge Protasiewicz will join the court; a factor which no doubt encouraged the majority to try and slam through this lame-duck decision without giving it normal consideration. It also seems highly likely that the new majority will revisit the question in the near future).

However, aside from the short per curiam, and the short dissent, there was a very not-short concurrence from Justice Rebecca Grassl Bradley* (last seen engaging in election-denierism while comparing the use of ballot drop boxes to North Korean autocracy). The concurrence is little more than a Townhall-style rant against the dangers of diversity initiatives. It is replete with bitter buzzwords more commonly found in the recesses of social media: claiming that the "very point of mandating DEIA CLE would be to create a 'goose-stepping brigade[]' of attorneys," accusing the Bar of trying to "virtue signal, and railing against "the predictable and petty slanders of the cancel culture crowd." She even contorts the unanimous support of the Wisconsin Bar for this initiative as illustrative of a "grave illness in our society" that can only be explained by the way DEI supporters "demoniz[e] dissenters."

There's more in that vein, all bolstered by a bevy of citations to a range of right-wing shock jocks. But I don't want to parse Justice Bradley's concurrence. Rather, I want to flag how the dissent addresses it -- or rather, quite consciously declined to address it -- in its concluding footnote:

I choose not to respond to the substance of the concurrence, which is hostile, divisive, and disrespectful. This political rhetoric has no place in an order of the court. We should instead engage earnestly with opposing perspectives by granting a hearing on the petition, which is what our ordinary process requires.

Perfectly appropriate under the circumstances. Not only was Justice Bradley's concurrence not worth the dissent's time, it's not germane to the dissent's point; namely, that if these debates are to be had, they should occur through the normal process of granting a hearing and engaging earnestly with the various perspectives on the issue.

And that mature response by the dissent caused an already rage-filled Justice Bradley to truly go ballistic:

Proving well that many proponents of DEIA orthodoxy demonize its critics, the dissenting justices "choose not to respond" to this concurrence, instead dismissing it with a headline-grabbing caricature as "hostile, divisive, and disrespectful" "political rhetoric[.]" Dissent, ¶46 n.4. This concurrence cites more than a dozen United States Supreme Court decisions, multiple state supreme court decisions, Frederick Douglass, Martin Luther King Jr., Thurgood Marshall, Clarence Thomas, James Madison, Montesquieu, and at least an additional dozen legal scholars, authors, and professors. Of course, the real reason for the dissenters' refusal to engage with the substance of an opinion spanning more than 30 pages is the imminent change in court membership. The new majority will reverse this court's order at its first opportunity.

The dissenters borrow a rhetorical tactic from the modern political sphere increasingly employed by justices of this court in lieu of legal argument. See, e.g., Jane Doe 4 v. Madison Metro. Sch. Dist., Nos. 2022AP2042, 2023AP305 & 2023AP306, unpublished order, at 3 n.1 (Wis. May 19 2023, amended June 14, 2023) (Hagedorn, J., concurring) ("I also do not respond to this supplemental writing because of its abandonment of basic judicial decorum."). When lawyers decline to respond to legal arguments advanced in a case, the court considers the point conceded.

If ever there was a time for applying "I'm not mad" to a legal opinion, this is it. Note, incidentally, the final shot at Justice Hagedorn, who is actually a member of the Court's conservative faction but has generally refrained from joining the more fever-like portions of the Court's analysis (he didn't join Bradley's concurrence, for instance, though he joined the majority here). As is so often the case, the most immediate targets of conservative legal grievance posturing in defense of "ideological diversity" are other conservatives who don't want to engage in conservative legal grievance posturing.

In any event, it's tough to imagine a better example of conservative legal grievance culture than writing a 30-page 4chan post accusing the other side of being dishonest, virtue-signaling goose-steppers and then stomping your feet with "debate me, cowards!" (and accusing them of "demonization") when your colleagues don't deign to jump in the mud pit with you.

As I've written before, the Wisconsin Supreme Court has been a national embarrassment for years, and Justice Bradley certainly has played a large role in that. One can only hope that the new majority will restore some desperately-needed sanity and decorum to the circus-show.

* There are actually two Justice Bradley's on the Court -- Rebecca Grassl Bradley, who is among the conservatives, and Ann Walsh Bradley, who is one of the liberals. The latter Justice Bradley joined, but did not write, the liberal dissent, so throughout this post all references to "Justice Bradley" refer to Rebecca Grassl Bradley.