March 26, 2007: A Court Unbound?

This white paper [31 pp. pdf] by Rick Esenberg, on The Recent Jurisprudence of the Wisconsin Supreme Court, is part of a Federalist Society's series on the state of a state's judiciary.

He discussed the paper at a noon luncheon Monday, March 26, 2007 in the Marshall Room of the Milwaukee Bar Association, 424 East Wells Street, Milwaukee.

(1.0 CLE credit, pending approval)

Judicial restraint is the notion that judges ought to base their decisions upon a source of authority that is outside of themselves and their own notions of the just. In a democracy, this source should be rooted, at some point, in the formal consent of the governed. As Chief Justice John Roberts has put it, "[j]udges are like umpires. Umpires don't make the rules; they apply them . . . ."

A court's willingness to restrict itself to interpretation of laws that are made by others is vital not only to the maintenance of democracy, but to the very notion of judicial independence. If judges come to be another set of political actors – deciding which set of policies are best – there is no compelling reason to regard their decisions as final or to respect their independence from the political fray.

Judicial restraint is not synonymous with "pro-business" or "anti-liability" or even "conservative" decisions. Although our recent judicial history may be comprised largely of "activist" decisions advancing what may be seen as the goals of the political left, there is nothing inherently "liberal" or "conservative" in this view of restraint. In fact, one of the most notorious manifestations of judicial activism occurred in the first part of the twentieth century when the United States Supreme Court consistently struck down Progressive-era economic legislation on grounds not set forth in, or fairly inferable from, the constitutional text.

Recently, the Wisconsin Supreme Court has shown a willingness to abandon long accepted principled constraints on the court's use of its power. In adopting an extraordinarily aggressive form of equal protection analysis, it has substantially weakened the presumption that statutes are constitutional. By adopting an expansive view of its supervisory powers and evincing a willingness to re-examine factual findings to which courts customarily defer (or to make findings normally made by other branches of governments), the court has demonstrated an increased affinity for the imposition of grand judicial solutions to difficult social problems.

Much of this has been the product of a sharply divided court, suggesting that we have reached a critical juncture. The court is now more or less evenly divided between two groups of justices who have dramatically different notions of the role of the judiciary. It is the purpose of this white paper to facilitate a discussion about this important trend and to foster a dialogue about the proper role of the courts in our state.