Let's not tolerate judicial activism

Daniel Kelly in an op-ed in The Capital Times

Are we to be ruled by law, or by judges? The Wisconsin Supreme Court's disturbing movement toward judicial activism gives us the court's answer: It is to be judges.

Judicial activism reinforces a growing public consensus that the court is not a neutral dispenser of justice, but is instead a powerful institution committed to advancing its own insular, political agenda. If the rule of judges makes us uncomfortable (and it should), we must make sure the next Supreme Court justice understands the limited role of the judiciary.

Concern for the court's membership is not just for academics anymore. We all have a vested interest in who dons the black robes because the court's increasing fondness for legislating from the bench reaches deep into our personal and communal lives. It impacts our taxes, affects our employment, impinges on our access to health care, and even compromises our security.

Judicial activism corrodes our form of government in two significant ways: It turns the law into an unpredictable guessing game, and it saps our confidence in the judiciary's neutrality. Here is how it happens:

First, judicial activism changes the rules in the middle of the game. We instinctively recognize the unfairness of a football referee deciding, on a play-by-play basis, how many yards a team must gain for a first down, or where the end zone starts. We understand the utter confusion that would follow. Over the past few years, the Wisconsin Supreme Court has pushed us toward that confusion by substituting its policy preferences for those adopted by the Legislature.

In a remarkable example of this activism, the court recently struck down a statutory cap on non-economic damages in medical malpractice injury cases. The cap may or may not be a good idea, but the reasoning the court employed was chilling.

It decided the Legislature's effort to reduce out-of-control health care costs was not likely to succeed. Fair enough the court is free to express its thoughts on the topic. But then it said that if the law is not likely to work, it is unconstitutional. Using this brand-new constitutional analysis, the court took to itself the power to dispose of any law it does not like.

The court also uses this activism to surprise us with new laws. In another recent case, the court decided that any company that has ever manufactured lead-containing paint can be held liable for lead poisoning, even if there is no discernible relationship between the company's activity and the plaintiff's injury. The court then made this new law effective against activity that had ceased over 30 years ago.

Apparently, even if our actions conform to the law today, we could be penalized for them tomorrow should the court so choose.

This unpredictability is entirely inconsistent with the rule of law. We have a right to know, in advance, what is lawful and what is not so we can intelligently plan our affairs. Judicial activism prevents us from knowing the law until the court springs its pronouncements on us.

The second major problem with judicial activism is that it robs us of our confidence that courts neutrally apply the law, free of any agenda but justice. If the constitution, statutes or case precedents do not clearly support a court's decision, reasonable people wonder whether something other than the law is informing the judges' decrees.

This erosion of confidence is already well advanced. Two of the questions my litigation clients ask most frequently are: "What do you know about the judge's politics, and does he favor the laws involved in our case?"

They ask these questions because courts have taught them that judges often make decisions based on their personal political views, rather than the law. I am finding it increasingly difficult to convince them otherwise.

Judicial activism is not inevitable. We do not need to accept the corrosiveness of unpredictable laws and failing confidence in our courts. We can tell the courts we will accept nothing less than the rule of law.