DRAFT - Shirley

Justice Shirley S. Abrahamson Wisconsin Supreme Court Justice: 1976–2019 Chief Justice: 1996–2015 Life: 1933–2020

Trailblazer. Driven. Tireless. Fair and impartial. Brilliant legal scholar. These are just a few of the many terms that describe Shirley Abrahamson.

In July of 2019, Shirley Abrahamson stepped down from the Wisconsin Supreme Court after completing her fourth 10-year term. In her 43 years on the state’s highest court, almost half of them as our Chief Justice, she has left behind an unparalleled legacy, wherein she authored more than 535 majority opinions, 491 dissenting opinions, and 325 concurring opinions. These figures do not include the tens of thousands of petitions for review, bypasses, certifications and lawyer and judicial disciplinary cases to have come before the Court during her tenure.

Born in 1933 in New York City to Jewish Polish immigrants, Shirley Abrahamson stated that she knew from an early age she wanted to be a lawyer. After graduating from New York University in three years, she attended the University of Indiana Law School, graduating in 1956 at the age of 21. A trailblazer for women in the law, she graduated first in her class—the only female—and in 1976 went on to become the first woman to serve on the Wisconsin Supreme Court. She became Chief Justice in 1996, and in 2013, she became the longest-serving Wisconsin Supreme Court Justice ever.

For her part, Shirley Abrahamson modestly attempted to downplay her trailblazer status, commenting in a video interview for Indiana University that “I was there at the right time and I was in the right place. It was before many women went to law school, so there were opportunities and there was a trail that could be walked. But you know, there have been many women over many generations who blazed that trail so I could walk on it.” The trail she has blazed for others following in her footsteps is nothing short of extraordinary.

In terms of her legacy, Shirley Abrahamson will be remembered for her advocacy for new federalism, which stresses the importance of state constitutional law as affording additional protections and rights to individuals beyond those guaranteed by the federal Constitution. One area in which her opinions have stressed the additional protections afforded under the Wisconsin Constitution as compared to its federal counterpart is in connection with the individual right against unreasonable searches and seizures guaranteed by Art. I, § 11 of the Wisconsin Constitution. Dissenting in State v. Eason, 2001, in which the majority agreed with the lower courts that the police lacked a reasonable suspicion to execute a “no-knock” search warrant, but nevertheless held that suppression of the evidence was not required as a consequence for this constitutional violation, Chief Justice Abrahamson eloquently stated that “[p]ersonal liberty is not a game. It is the hallmark of our country. Upholding the rule of law will not always produce a popular outcome, but it will preserve freedom. That is our duty as an independent judiciary.”

Shirley Abrahamson has also left behind a legacy as a champion for judicial independence. In many writings, she has explained how public perception of the judiciary as being principled and independent is vitally important to the judiciary’s institutional legitimacy. Writing in 2003, she explained the concept of “judicial independence” as follows:

Although the phrase is hard to define, the term "judicial independence" embodies the concept that a judge decides cases fairly, impartially, and according to the facts and law, not according to whim, prejudice, or fear, the dictates of the legislature or executive, or the latest opinion poll. At times, judicial independence means making unpopular decisions, whether unpopular with the legislative or executive branch, the public, or judicial colleagues.

As she told those gathered in the Capitol Rotunda at her tribute ceremony on June 18, 2019, “[t]he need for an independent judiciary both in this state and in the country has never been greater.”

Throughout her entire judicial career, through her actions and words, Shirley Abrahamson has also embodied the mantra “and justice for all.” As she has explained, “[i]t’s important that we apply the same rule of law to everybody, because that is only fair and you learn that as a child.”

As she stated in her concurring opinion in School Dist. of Shorewood v. Wausau Ins. Companies, (Wis. 1993), “[e]mpirical studies have demonstrated that trust and confidence in the legal system are directly related to litigants' perceptions of fairness and that litigants equate fairness with opportunities to present their stories to decision-makers who follow established neutral procedures.”

Shirley Abrahamson’s legacy also includes her substantial contributions to the body of common law decisions that adapted tort law to changes in society in order to allow those wrongly injured to have access to the courts, to have their claims decided fairly and impartially by juries or courts.

While the important opinions she authored in this regard are too numerous to list in total, these opinions include Peot v. Ferraro, (Wis. 1978). At issue in Peot was the (then) shady practice of some defense attorneys, knowing that the law imposes limits on recovery for loss of society and companionship damages in wrongful death cases, to invite the jury to award a greater amount for those damages, but a lesser amount for the pecuniary damages that are not subject to any legislative limit on recovery. Writing the opinion for a unanimous court, she stated that juries fulfill their function of deciding issues best when they have more, not less, information, and that juries should therefore be informed of the existence of the limitation on wrongful death damages.

Yet another landmark decision was Wangen v. Ford Motor Co., (1980), in which the Wisconsin Supreme Court held that punitive damages are recoverable in product liability cases. Writing for the majority, Justice Abrahamson stated that “[i]n light of this court’s repeated reaffirmation of the concept of punitive damages as a civil deterrent to ‘outrageous’ behavior, and because apparently some businesses have found it in their interests to operate with reckless disregard to consumer safety, this court cannot, in good conscience, prohibit punitive damages in all product liability cases unless there is a strong showing that such prohibition is in the public interest.”

Rejecting Ford Motor Company’s argument that punitive damages are “wholly unnecessary” in product liability cases, she wrote that “the need for punitive damages may be particularly appropriate in a product liability case because mere compensatory damages might be insufficient to deter the defendant from further wrongdoing. Some may think it cheaper to pay damages or a forfeiture than to change a business practice.” She also recognized the important role that punitive damages play in encouraging product manufacturers to design safer products, and rejected Ford’s calls to take safety out of the hands of individual state court juries and leave safety entirely up to the federal government.

Another watershed common law decision authored by Shirley Abrahamson was Bowen v.

Lumbermens Mut. Cas. Co, 183 Wis. 2d 627, 517 N.W.2d 432 (1994), in which the court recognized the right of a family member to sue for negligent infliction of emotional distress based on witnessing the severe or fatal injuries to another family member. Recognizing that prior precedent imposed unfair and arbitrary limits on otherwise meritorious claims, this decision recognized the right of “bystander” emotional distress claims to proceed, subject to certain requirements are met.

During a time when some feel that it is acceptable to attack and denigrate judges who do not rule the way they like, and to not treat the judiciary with the respect that it deserves as a coequal branch of government, Justice Shirley Abrahamson’s example and career serves as a paragon of what a fair and impartial judge is and should be. For her outstanding service to the practice of law, for her tireless commitment to striving to make our legal system equal and accessible to all people, for her substantial contributions to the body of common law decisions affecting the rights of Wisconsin citizens to obtain access to the courts, and for being such a staunch proponent of a fair, impartial and non-partisan judiciary, “we may not look upon her like again.”

“Among jurists, Shirley Abrahamson ranks with the very best, the brightest and most caring, the least self-regarding,” said Ruth Bader Ginsburg, Associate Justice of the U.S. Supreme Court.

“She never forgets that law exists to serve all the people composing society, not just those in privileged positions.”

“Wisconsin was fortunate to have her steady hand at the helm of its Judiciary,” Justice Ginsburg wrote in a statement. “During her long tenure, she has inspired legions of law graduates to follow in her wake – to pursue justice, equal and accessible to all.”

“I am the child of immigrants, and I think that influenced me a great deal, that this country was open. My mother and father told me I could do anything I put my mind to. No doors were to be closed,” said Abrahamson, who set her mind on the law.

“[m]y gender – or, more properly, the experiences that my gender has forced upon me – has, of course, made me sensitive to certain issues, both legal and nonlegal. So have other parts of my background. My point is that nobody is just a man or a woman. Each of us is a person with diverse experiences.”

Shirley inspired many throughout her career. Attorney Kathryn Bullon, a member of the State Bar of Wisconsin’s Board of Governors, graduated from the U.W. Law School in 1980, four years after Abrahamson took the bench. As a law student, she took Abrahamson’s seminar on legislative process and policy.

“We saw a woman who came before us, in even less welcoming times, and rose to the state supreme court through her intellect and scholarship, her years in private practice, and her work ethic,” Bullon said. “When we sat down with her, it became absolutely concrete for us women that we can do this. This is a woman who has done it.”

Fellow Justice Ann Walsh Bradley, also Abrahamson’s former student, said Abrahamson often counseled young women. “The number of women who can say they went to law school because of her, I think, is a significant number,” Justice Bradley said.

When asked about her judicial philosophy, Abrahamson had a simple response: “My judicial philosophy is to examine the facts, the law, and the precedent. You apply the facts to the law and the precedent as you understand them, and you reach a decision.”

“It’s important that we apply the same rule of law to everybody, because that is only fair and you learn that as a child,” she said. “If your brother gets one cookie, there has to be a really good reason you don’t have one cookie, because that’s equal protection.”

“The second part is that you apply the same rule to the same circumstance. You don’t apply the same cookie rule to a 10 year old as you do a 3 month old, who can’t swallow cookies. When you apply the same circumstance, you apply the same law.”

“Janine Geske, a former justice, described Shirley Abrahamson as the hardest working, smartest person she has ever met, and I think that is accurate,” Justice Ann Walsh Bradley said.

Even respected jurists who disagreed with new federalism, and Abrahamson’s judicial philosophy, respected her intellect. “Justice Abrahamson is a brilliant legal thinker, a powerful writer, and trailblazer in the law,” said Judge Diane Sykes of the U.S. Court of Appeals for the Seventh Circuit. Sykes served on the Wisconsin Supreme Court from 1999 to 2004.

“She’s been a champion of equal justice, individual rights, and an independent judiciary,” Judge Sykes continued. “We have different views on legal interpretation and the role of the courts, but her work always made mine better. She has made an outsized and lasting mark on our state law.”

Other chief justices around the nation recognized Abrahamson’s talents. She was elected president of the Conference of Chief Justices (2004-05), which brings the chief justices together to “meet and discuss matters of importance in improving the administration of justice” and the organization and operation of state courts.

Former Alaska Supreme Court Chief Justice Dana Fabe, first appointed in 1996, was the first woman to serve on that court and served three terms as chief justice.19 She first met Abrahamson at the Conference of Chief Justices, in her first term.

“She really tucked me under her wing,” said Justice Fabe in an interview. “She was so inclusive, and introduced me to the other chief justices. She was instrumental in helping me develop as a chief justice, and she was always available to provide guidance.”

Shirley Abrahamson was a supporter of the arts and an avid collector. She strived to support local artists in Madison, Wisconsin including Afred Sessler, Warrington Colescott, Larry Edman, and many more.

Shirley and her husband Seymour travelled the world and often collected art in the countries they visited. Their collection, now know as the Abrahamson Family Collection, features work by Honoré-Victorin Daumier, Barbara Hepworth, Utigawa Kunisada, Haku Maki, Utagawa Hiroshige, and others.

The Abrahamson Family Collection is reflective of Shirley’s passion for justice, equity, and protection for all. Her son, Daniel Abrahamson, continues her legacy of collecting politically driven art and is actively growing the Abrahamson Family Collection. He plans to convert Shirley and Seymour’s home in Madison, Wisconsin into an artist house that will be the home of the collection and an artist in residency program to support living artists.

Shirley’s legacy lives on through her son Daniel and her grandson Moses, as well as all the lives impacted by her service as a supreme court judge.

“I’m sure I could have done things smarter.

I’m sure I made mistakes along the way,” Abrahamson said. “But I can’t think of anything major that I would do differently in my career.”

“I would hope I could do things better if I had to do them a second time, but I think I’ve lived my life well and I tried my best. I’m not looking to redo it. Once is enough.”