Justice Shirley Abrahamson

Retiring Wisconsin Supreme Court Justice Shirley Abrahamson was recognized by other justices in May after the conclusion of her last oral arguments. In honoring her colleague, Justice Ann Walsh Bradley noted Abrahamson was listed among 100 "Great American Judges" in a 2003 book of the same name alongside historical figures such as John Marshall and Oliver Wendell Holmes.

At the door to the chamber where the Supreme Court of the great state of Wisconsin convenes itself, there is a bust of Edward George Ryan, the Irish immigrant who was one of the ablest lawyers in the Wisconsin Territory, an essential delegate to the first state constitutional convention and the chief justice of the high court.

Ryan is honored for several reasons but, primarily, for a prophetic address that he delivered to the graduates of the University of Wisconsin Law School in 1873, on the eve of his appointment to the Supreme Court. In that address, Ryan warned: "There is a looming and new dark power … The accumulation of individual wealth seems to be greater than it ever has been since the downfall of the Roman Empire. The enterprises of the country are aggregating vast corporate combinations of unexampled capital, boldly marching, not for economic conquests only, but for political power. For the first time really in our politics money is taking the field as an organized power.”

Ryan urged the students to consider the fact that “an aristocracy of money is essentially the coarsest and rudest, the most ignoble and demoralizing, of all aristocracies.” And he counseled: “Here it comes, a competitor for social ascendancy. It is entitled to fear, if not respect. The question will arise, and arise in your day, though perhaps not fully in mine. Which shall rule — wealth or man; which shall lead — money or intellect; who shall fill public stations — educated and patriotic free men, or the feudal serfs of corporate capital?" Lawyers and jurists would be called, he said, to guard against a circumstance where “mere money, the gamblers stake in Wall Street” might prevail over “justice truly administered.”

In the audience that day was a young Robert Marion La Follette, who answered Ryan’s call by forging a progressive movement that declared “the will of the people shall be the law of the land.” That movement made Wisconsin over as America’s “laboratory of democracy” and shaped most of what is good and noble about this state. In the history and myth of the movement, Ryan achieved an iconic status. He was the secular Jeremiah, the judicial prophet, who saw plutocracy coming and urged young lawyers to “put on your professional armor” in defense democracy.

I came of age in a family that revered Ryan, so I was a bit surprised when former Chief Justice Shirley Abrahamson, who was also revered in my family, raised an eyebrow as we considered the bust of her predecessor on a summer afternoon many years ago. If there was anyone who had served on the court with so righteous a faith in justice as Ryan, I thought, it has to be Abrahamson. What could she possibly have against Edward Ryan? While he had anticipated the rise of corporate special interests, she explained, he had not anticipated her.

Abrahamson recalled the case of Lavinia Goodell, the first woman admitted to practice law in Wisconsin. When Goodell applied in 1876 for permission to argue cases before the Wisconsin Supreme Court, Ryan rejected her — and all women. He argued that allowing women to practice law would be a “departure from the order of nature.”

Ryan worried that admitting Goodell to practice before the court would “emasculate the constitution itself and include females in the constitutional right of male suffrage and male qualification. Such a rule would be one of judicial revolution, not of judicial construction.”

The former chief justice was wrong, and Abrahamson was right to raise an eyebrow. As the first woman ever to serve on the state Supreme Court, as the first woman to serve as chief justice, and as one of the ablest of all interpreters of the state and national constitutions, the jurist who will step down this summer after serving for 43 years years on the high court has always recognized the nuances and the complexities of her position. She has struck many balances. And she has done so with regard to that bust of Ryan. She has understood that the pioneering justice was prescient, on some issues, and that he earned himself an honored place in the arc of Wisconsin history. Yet she also understood that it was inappropriate to heap unquestioning praise on the man.

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A few years ago, Abrahamson told Inside Track, the newsletter of the State Bar of Wisconsin, that she always says a silent “hi” when she passes the bust of Ryan. “And I hope he’s saying ‘hi’ back and smiling,” she added. Ryan, she explained, was a “very, very able justice of this court.”

As regards his wrongheaded response to Lavinia Goodell’s application, well, Abrahamson said, “I hope that he would be convinced now” that women can and should be lawyers — and chief justices of state and national supreme courts.

There will be many honors accorded Shirley Abrahamson in the days, weeks and months to come — including a program at 4:30 p.m. on Tuesday, June 18, in the rotunda of the state Capitol. All of these honors will be deserved. But I am rather hoping that, someday, a bust of the greatest chief justice in this state’s history will be placed opposite that of her predecessor. Ideally, Justice Abrahamson will stand just a bit higher, in recognition of the clarity and grace with which she has proven Edward Ryan wrong.

John Nichols is associate editor of The Capital Times. jnichols@madison.com and @NicholsUprising. 

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