Posted on 03/08/2006 7:42:59 PM PST by July 4th
[July 4th's Note: I am posting the excerpt of Judge Diane Sykes' speech as it appears on Charlie Sykes' blog. For Diane Sykes' full speech, click here. This speech is about the Wisconsin Supreme Court, but the principles translate perfectly to the national debate of the direction of the judiciary.]
Given the implications for public policy and the law, the Wisconsin’s Supreme Court’s shift toward unrestrained judicial activism should have been the subject of extensive media coverage and debate within legal circles. So far that hasn't happened. At least until last night, when Federal Appeals Court Judge Diane Sykes delivered a provocative critique of the court’s leftward shift.
Her lecture, at Marquette Law School, was unusually compelling -- and big news -- because she is familiar with and privy to the internal deliberations of the court she sat on until the middle of last year. For the complete text, click here.
In the speech she starts by focusing on five landmark decisions in which the court:
• rewrote the rational basis test for evaluating challenges to state statutes under the Wisconsin Constitution, striking down the statutory limit on noneconomic damages in medical malpractice cases;
• eliminated the individual causation requirement for tort liability in lawsuits against manufacturers of lead-paint pigment, expanding “risk contribution” theory, a form of collective industry liability;
• expanded the scope of the exclusionary rule under the state constitution to require suppression of physical evidence obtained as a result of law enforcement’s failure to administer Miranda warnings;
• declared a common police identification procedure inherently suggestive and the resulting identification evidence generally inadmissible in criminal prosecutions under the state constitution’s due process clause; and
• invoked the court’s supervisory authority over the state court system to impose a new rule on law enforcement that all juvenile custodial interrogations be electronically recorded.
The importance of these decisions can scarcely be overstated. Considered individually, each represents a significant change in the law, worthy of close analytical attention from the bench, bar, and legal scholars.
Together, these five cases mark a dramatic shift in the court’s jurisprudence, departing from some familiar and long-accepted principles that normally operate as constraints on the court’s use of its power: the presumption that statutes are constitutional, judicial deference to legislative policy choices, respect for precedent and authoritative sources of legal interpretation, and the prudential institutional caution that counsels against imposing broadbrush judicial solutions to difficult social problems. I will concede (as I must) that a court of last resort has the power to throw off these constraints, revise the rules of decision, and set the law on a new course. But when it does so, we ought to sit up and take notice, and question whether that power has been exercised judiciously.
And yet there has been surprisingly little published commentary from the Wisconsin legal community about the groundbreaking developments of the court’s last term.
There is much more that could be said about these cases, but by now some common themes should be evident. The first is that the Wisconsin Supreme Court is quite vigorously asserting itself against the other branches of state government. When the court decides cases on the basis of the state constitution its power is at its peak, because legislative correction is impossible and the constitution is difficult to amend.
Three of these five cases involved interpretations of the Wisconsin Constitution, and a fourth, Jerrell, represents an extraordinary expansion of the court’s constitutional superintending power.
The terms “modesty” and “restraint”—the watchwords of today’s judicial mainstream—seem to be missing from the Wisconsin Supreme Court’s current vocabulary. Instead, the court has adopted a more aggressive approach to judging.
A related phenomenon is the court’s apparent strong preference for its own judgment over that of either the Wisconsin legislature or the United States Supreme Court. Only one of the decisions discussed today is capable of being modified by the state legislature, and none can be reviewed by the Supreme Court. The present Wisconsin Supreme Court is plainly disinclined to defer to the judgment of those elected to represent the people of this state, even though the structure of state government and the court’s precedents require it to do so.
The court has lowered the threshold for invalidating statutes by adopting a heightened standard for evaluating their constitutionality. The court is quite willing to devise and impose its own solutions to what it perceives to be important public policy problems—civil and criminal—rather than deferring to the political process.
The court has also manifested a cavalier, almost dismissive attitude toward the sources of legal interpretation generally thought to be most authoritative: the text, structure, and history of the constitution and laws, and the court’s own precedents.
Despite their heft, most of the opinions discussed today are notable for their failure to meaningfully engage in the usual analysis of applicable legal texts and court precedents. Instead, long-standing legal standards are rewritten or simply disregarded at will, either by reference to less authoritative decisional resources—such asdisputed social science research—or simply the court’s own subjective policy judgment and raw power to render a binding statewide decision. Judges who are sensitive to some limits on the scope of judicial authority and competence generally try to confine themselves to authoritative and objective sources of interpretation—the law’s language, structure, logic, and history—and are skeptical of broad appeals to the court’s policy judgment. Among other things, this approach has the virtue of constraining the judges to behave like judges rather than legislators.
The Wisconsin Supreme Court has enormous influence over the legal order and the political, social, and economic future of this state. These cases from the last term reflect a court quite willing to agressively assert itself to implement the statewide public policies it deems to be most desirable. The court is loosening the usual constraints on the use of its power, freeing itself to move the law essentially as a legislature would, except that its decisions are for the most part not susceptible of political correction as the legislature’s would be. Time will tell whether the court will continue the extraordinary activism of its 2004-2005 term, will adjust its pace, or take a breather. In the meantime—and this is true regardless of whether the trends of the last term continue or abate—the court’s work deserves closer attention from the legal community and the public.
Ping
She better be careful or she might find her name off the short list for the SCOTUS (sadly).
bump
Sometimes I think I am rather sharp.
Then I read insightful logic and commentary like this and feel dumb as a stump.
I have re-read this three times and I am still digesting the implications.
It seems that nearly everyone in the US needs a crash course in what Federalism means, and how the Federal system originally worked (particularly role of states vs Federal government, but also including the 3 branches of government). People just don't seem to understand the role of the state or even of the other branches of government in the system anymore.
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