Supreme Court Race: Future of School Choice on the Line

George Mitchell is a long-time Wisconsin political activist and policy wonk who has been a strong supporter of school choice. In a circular e-mail, sent Tuesday and reprinted here with permission, he lays out the danger to school choice that the election of Linda Clifford to the state Supreme Court would entail:

Take Note

Unreported in today’s article on the Supreme Court debate is a comment by candidate Linda Clifford, who responded to a question saying that the law regarding “school choice” needs “clarification.”

It does? What does that mean?

The Wisconsin Supreme Court in 1998 upheld the constitutionality of the Milwaukee Parental Choice Program. On a 4-2 vote, with Justice Ann Walsh Bradley recusing, the court rejected each and every point raised by lawyers for teacher unions.

In 2002 the United States Supreme Court upheld the constitutionality of the Cleveland voucher program.

There is no benign way to interpret Clifford’s comment. “Clarifying” the 1998 court decision can only suggest an adverse impact on Milwaukee’s program. This would affect not only Milwaukee but parents and families statewide, as some candidates for public office and some sitting officials favor an expansion beyond Milwaukee. While that likely would not occur while Jim Doyle is governor, he won’t be governor forever. However, Linda Clifford, his candidate for the Supreme Court, easily could serve for decades if elected April 3.

After April 3, three of seven Supreme Court justices on the court in 1998 will remain. They are Chief Justice Abrahamson, Justice Patrick Crooks, and Justice Ann Walsh Bradley.

Justice Abrahamson dissented in the 1998 decision. Justice Crooks voted with the majority. For reasons not publicly explained, Justice Bradley recused herself.

New to the court are Justice Butler, a Doyle appointee; Justice Pat Roggensack; and Justice David Prosser.

As an appellate judge, Justice Roggensack authored a lengthy dissent in support of the Milwaukee program’s constitutionality when the case was heard in 1997. Her dissent became the spine of Justice Steinmetz’s 4-2 majority opinion in 1998. So, she clearly is on record, as is Justice Crooks.

Justice Prosser was a member of the Legislature and strong supporter of school choice in the 1990s. He, too, presumably believes the law is constitutional.

So, that is three apparent votes to sustain the principles established in the 1998 Wisconsin and 2002 U.S. Supreme Court case.

Chief Justice Abrahamson is on record that the program is unconstitutional. When I asked Louis Butler his opinion during his candidacy against Diane Sykes, he pointedly declined to answer.

Justice Bradley’s reasons for recusing in 1998 are not known, as is whether she would recuse herself if another case came before the court. Justice Bradley often agrees with Chief Justice Abrahamson.

So, the math is clear. Three apparent votes to sustain prior rulings on choice. Three potential votes not to sustain.

Linda Clifford is seeking the fill the seat of Justice Wilcox, who voted with the majority in 1998. She could provide a fourth vote to “clarify” the school choice law.

I am unaware of Judge Ziegler’s position, though the presumption must be that she would vote to sustain the precedent set by the 1998 and 2002 decisions.

Linda Clifford’s comment is significant beyond the very ominous implications for school choice. If anything has seemed clear in the school choice debate, it is that the law is settled. Yet Clifford is saying otherwise, notwithstanding two court rulings (that happen to reflect the thinking first set down by Justice Roggensack).

What other established precedents does Linda Clifford think need “clarification”?

Does Clifford’s opinion on choice explain the Greater Wisconsin Committee’s issue ad in her behalf? Did WEAC fund that?

These and many related questions now are at the center of this race.

This is what happens when judges adopt an activist posture. Constitutions cease to matter. Precedents cease to matter. All that comes to matter are the policy preferences of the judges. And Clifford is a liberal, endorsed by all the usual liberal suspects. They must feel -- and they are probably right -- that she will give them the policies they want.