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Wis. Supreme Court Justice Bradley speaks on court's role amid pandemic

Posted at 11:06 AM, Jun 16, 2020

It's been a busy year of big decisions from the Wisconsin Supreme Court during the COVID-19 pandemic.

Justices don't talk about their court decisions, they let their written opinions do the talking.

But during a social distancing interview at her home, Justice Rebecca Bradley talked with TMJ4's Charles Benson about the court's overall role.

From making key decisions striking down efforts to postpone the April election and overturning Safer at Home, it's been a busy term.

Benson: So what's it like to be a Supreme Court justice these days?
Justice Bradley: Our work is a little bit different than it usually is, which is the case for a lot of America right now.

Justice Bradley agreed with the majority in both challenges by the Republican-controlled legislature, including high profile cases in hyper-partisan times.

Benson: Do people think they can actually lobby the courts?
Justice Bradley: Well I think every justice can confirm we have been recently flooded with phone calls over the last couple of months.
Benson: More so than normal?
Justice Bradley: More so than normal.

But unlike lawmakers, Justice Bradley says courts are not policymakers open to persuasion by public opinion.

After the 4-3 overturning of the Safer at Home decision, Milwaukee Mayor Tom Barrett, a Democrat, claimed the court acts like a "jukebox for the Republican leadership."

The Supreme Court is often seen as a 5-2 split with Bradley viewed as one of five conservative justices.

Benson: Are those the fault lines? Is that a misperception?
Justice Bradley: It is a misperception in that and if you look at the data it doesn't support the idea that the court is a political actor.

Justice Bradley says in 30 civil and criminal cases this term, 12 opinions were unanimous, four had just one dissent, nine cases were a 4-3 split.

Wisconsin voters elect their supreme court justices to ten-year terms. While the nonpartisan races are very political, Bradley says it's more about judicial philosophy.

"If you are reading an opinion that is talking about the constitution, the statutes, case precedent, that opinion is grounded in the law," said Bradley. "And those are the kind of opinions I certainly write."

The opinion she wrote for the Safer at Home decision was called out for being insensitive and offensive in a Japanese American Museum op-ed. Bradley reference the Korematsu case, the internment of Japanese Americans in concentration camps during World War II, a dark stain on American history.

"Our ethics rules do prevent me from talking about the decisions that we've rendered," said Bradley. "So, I can't talk about that. But how I do talk about it is in the opinions that I write."

Wis. Supreme Court Justice Rebecca Bradley speaks on oral arguments, briefs and research

Bradley wrote "citing them is not to draw comparisons between the circumstances of people horrifically interned by their government during a war and those of people subjected to isolation orders during a pandemic."

She added: "We mention cases like Korematsu in order to test the limits of government authority, to remind the state that urging courts to approve the exercise of extraordinary power during times of emergency may lead to extraordinary abuses of its citizens."

Benson: Do you worry about the public's trust in the courts?
Justice Bradley: I do worry about it because it's very important for the public to have faith in the judicial branch for being the independent arbiters of legal disputes.

While the pandemic has forced the courts to adjust with Zoom oral arguments, Bradley says one thing has not changed.

"When we put that black robe on, that is to symbolize we are setting aside our personal opinions, our political inclinations, our own personal philosophies, " said Bradley. "And replacing that with a judicial mindset with judicial philosophy."

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