A few months ago, I was talking to a reporter at Reuters who asked "what's going to happen next with you people in Wisconsin?" I told him that I had no idea but it would probably be some bizarre thing that no one saw coming. The next day Kathy Nickolaus had a press conference.
And now it happens again with our embattled Supreme Court. What a mess.
Let's clear away the obvious. The idea of David Prosser strangling Ann Walsh Bradley seems fantastical. But I wasn't there and if Justice Prosser did assault Justice Bradley - "put her in a chokehold" as the allegation has it, he should resign. However, it is equally the case that if Justice Bradley assaulted Justice Prosser - "charged him with raised fists" as the allegation has it (also a bit hard to picture), she should resign. Whether criminal charges should be issued is, of course, another matter and depends on how serious the altercation was. My guess is that - even if something untoward happened - it doesn't rise to the level that would normally result in prosecution.
But, of course, it's not clear that either one of them did what is alleged. The initial report by Bill Lueders was an embarrassingly bad piece of work. Deciding what happened will require resolving conflicting accounts and that resolving them will involve taking testimony from members of the Court other than just Justices Prosser and Bradley. That, for a variety of reasons, is going to make handling any potential disciplinary or criminal proceedings a nightmare. If there are conflicting versions corresponding to ideological stances, God help us all. Addressing that in the context of our politically charged environment in a way that does not become yet another major fissure in out state seems impossible.
But the worst thing, I think, would be to frustrate the will of the voters by the imposition of discipline based upon controverted allegations. That would smack of a coup. It would undermine the legitimacy of the Court. Either way.
But there are other threats to the institution. Lawyers have been worried about the divisions on the Court for some time now. It's one thing to disagree, but disagreement ought not to undermine civility and respect. No one likes to say too much about it in public for fear of alienating the people who may decide their clients' matters. I include myself among this reluctant group.
Someone - maybe more than some one - needs to step up and lead. Leadership requires more than scoring debating points and calling out your colleagues' character and bona fides. Substantive differences among members of the Court are real and important, but they are not unprecedented and are not existential. The damage being done to the Court as an institution may be.
It easy for us on the outside to think we know who is at fault. It is easy for us to think the matter is somehow resolved by a call to just "get along." The fact is that, like a damaged marriage, relationships within a collegial body can ultimately be repaired only by the members of that body. I don't pretend to know what that will take. I do hope that there will be some serious soul searching among members of the Court.