Where is Wisconsin's Court Headed?
By Rick Esenberg
are few terms more abused than “judicial activism” and “judicial
restraint.” Much of the public conversation regarding these terms
presumes either a sharp dichotomy (activist judges do whatever they want,
while restraintists simply follow clear legal instructions) or a complete
absence of standards (all judges are activists).
Even the metaphors
get tricky. During his confirmation hearing, Chief Justice John Roberts
told the Senate Judiciary Committee that “[j]udges are like umpires.
Umpires don't make the rules; they apply them . . . .”[i]
Some of us, however, remember the story of three umpires (perhaps they
were at a bar) who had very different views of their roles.
The first umpire
claimed to call them as he sees them. The second says that he calls them
as they are. The third—who may have held down a day job as a law
professor at Yale—went one step further. “They are,” he said,
“nothing until I call them.”
In attempting to
understand judicial restraint, the first umpire has it right. Just as
there are many pitches on which an umpire must make a judgment call, even
judges practicing judicial restraint may differ on what the law means. But
just as not all pitches can be either strikes or balls depending upon the
whim of the umpire, the constitution and statutes cannot mean anything and
ought not to be made to mean whatever we think is a good idea this
morning. A good judge, like a good umpire, needs to believe that there is
a strike zone and that it must be honored.
Few lawyers or
judges would actually advocate judicial activism in the sense of
explicitly urging that judges ignore the law and do whatever they want.
Yet much of the popular criticism of “conservative” judges is based
not on a claim that they get the law wrong, but that they are
“unfeeling” or hand down decisions that are not “good” policy.
These critics are likely to sympathize with that third umpire. For them,
the strike zone is elastic. Perhaps laws cannot mean anything, but they
can mean many things—so many things, it seems, that there is little to
prevent judges from doing whatever they believe to be right.
While it is common
to hear that one judge's activism is another's restraint, I believe that
these terms, while lacking scientific precision and permitting lots of
room for debate about how particular cases should be decided, do have
meanings upon which reasonable people can agree.
judge exercising restraint must act on external and legitimate sources of
authority. Judicial restraint, for our purposes, 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. More
fundamentally, this source should be rooted, at some point, in the formal
consent of the governed, as opposed to the judge's preferred political or
moral philosophy. In other words, the exercise of judicial authority ought
to be based upon, or fairly inferable from, some language in the
constitution or statutes.
This view of the
judicial function is implicit in our system of government. A nation
certainly could choose to be governed by tribunals of wise men and women
who would consider arguments, discern the just and rule. But we have not
Rather, we have
chosen a democratic form of government with checks and balances largely
implemented through a separation of powers. Having made that choice, who
gets to decide an issue becomes just as important as what is decided. We
have given judges the final say on what the law means because they do not
get to say what the law is.
Sticking to the
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
judge must believe that rules mean something. Judges who seek to
exercise restraint will tend to adopt techniques of construction that
confine, rather than expand their discretion. They will be less likely to
adopt indeterminate meanings for legal terms or to construe them through
the use of multi-part “tests” that can, in any given case, justify
almost any result.
To use several
commonplace illustrations, a judge committed to judicial restraint is
unlikely to adopt Justice Anthony Kennedy’s view that the right to
choose whether to have an abortion is embedded in a broader constitutional
right to “define one's own concept of existing, of meaning, of the
universe and of the mystery of life.” That doesn’t help me to figure
out how any particular case should be decided and it won’t really help
Justice Kennedy either. Stripped of the pretty language, it is a simply a
warrant for him—and other judges—to do whatever seems right.
practicing restraint will exhibit sensitivity for the role of other
branches of government. They will refrain from overly detailed
prescriptions to the executive and overweening reexamination of the policy
choices of the legislature. They will not feel compelled to “solve
problems” that the political branches have “ignored” or to
“update” the statutes. They will be reluctant to base decisions upon
judicial divination of the “will of the people”—something that is
best left with the political branches.
activism is not synonymous with striking down statutes. Nor does restraint
always require letting them stand. If a statute violates a constitutional
command, then it is a form of activism, i.e., of making, rather than
applying, the rules, to let it stand notwithstanding its inconsistency
with the people's foundational document.
is also not synonymous with following precedent. Once made, error is not
immune from correction. Although notions of judicial restraint do not
preclude overruling prior decisions, they do suggest a certain
circumspection about doing so. A presumption of adherence to precedent not
only serves as a further source of judicial discipline, but enhances
predictability and strengthens the public perception of judicial
legitimacy, serving the cause of judicial independence.
Supreme Court: Moving in an activist direction?
about the Wisconsin Supreme Court as “activist” began in earnest
following the 2004-2005 term, the first following the resignation of
Justice Sykes (appointed to the Seventh Circuit by President Bush) and her
replacement by Justice Louis Butler. Milwaukee County Circuit Judge
Michael Brennan wrote that the court's decisions raised “concern about
the proper exercise of judicial authority under the state's
Susan Steingrass, a law professor at the University of Wisconsin, observed
that “[i]t's an interesting court to watch now. Nothing's for sure”[iii]
The Dean of my law school, Joseph Kearney, observed that “[b]y any
measure, this was an extraordinary year at the Wisconsin Supreme Court.”
According to Kearney, “[f]rom tort law to criminal law, the court was
willing to depart from what had seemed to be settled approaches.”
Judge Sykes, delivering the Tenth Annual Hallows lecture at Marquette
University Law School, discerned “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 broad-brush judicial solutions to difficult
Judicial activism on
the Wisconsin Supreme Court
from binding sources of authority. In recent years, the court has
managed to transform two fairly straightforward and recently passed
constitutional amendments in ways that are, at best, tangentially related
to what the voters adopted.
In 1998, for
example, the voters of Wisconsin amended the state constitution to
guarantee “the right to keep and bear arms for security, defense,
hunting, recreation or any other lawful purpose.”[v]
Since passage of the amendment, the court has struggled to pave this broad
constitutional right in order to preserve Wisconsin's pre-existing statute
which, in its own description, “completely ban[s] the carry of concealed
weapons by all citizens in all circumstances,” a circumstance that the
court has characterized as “anomalous, if not unique.”[vi]
It certainly is
anomalous if you want to save the statute from invalidation by what is a
fairly clear constitutional command. Rather than conclude that the state's
concealed carry law is unconstitutionally overbroad, the court has
attempted to balance a citizen's interest in bearing firearms against the
state's purpose in prohibiting concealed carry.
For example, in State
v. Fisher,[vii] the defendant was an
owner of a tavern who kept a gun in his vehicle because he transported
large amounts of cash after closing (although he was not doing this at the
time of his arrest). The court continued its practice of reading the
amendment’s specified examples
of a “lawful purpose” as
limitations on the broad right enacted by the amendment and applying
those restrictions in a fairly aggressive way. Not only, it seems, must
you need concealed carry for security purposes, you must really need it.
In Fisher, a majority concluded, the tavern keeper was undeserving.
How this narrow
construction of Article I, sec. 25 can be reconciled with its broad
language is unclear unless we believe that use of the phrase “lawful
purpose” conferred upon the court a relatively unfettered power to
decide when there is and is not a right to bear arms. A more
straightforward reading might be that there is a right to bear arms as
long as one does not do so to accomplish an unlawful end. While the
voters—however imprudently—may have thought they were passing a
relatively broad right, the court has “found” a severely constricted
In 1993, Wisconsin
voters amended the state's constitution to ban casino-type gambling. Prior
to the amendment, the state had entered into a series of compacts that
authorized Indian tribes to conduct some—but not all—casino-type
gaming on reservations. The compacts had been entered into between 1991
and 1992 and were limited to five years in duration, although each
automatically renewed unless terminated by either the tribe or the state.
the court, in a 4-3 decision, had held that amendments to the compacts in
2003 to add new casino-type games were prohibited by the new amendment.
This seems unexceptional. If casino-type gambling is now prohibited
in the state, actually expanding it would seem to be clearly
But, two years
later, in Dairyland Greyhound Park v. Doyle,[ix]
a majority accepted the Governor's invitation to revisit this issue. The
three Panzer dissenters
(Justices Bradley, Crooks and Chief Justice Abrahamson) joined by Justice
Butler (who had now replaced Justice Sykes, a member of the Panzer
majority) reversed Panzer,
reasoning that application of the 1993 constitutional amendment to the
original contracts was both unintended and that the parties “rights”
to not only renew, but to amend
the original compacts were protected by the Contract Clauses of the
Wisconsin and United States Constitutions.
Because the parties
to the 1991-1992 compacts believed
that they would be able to negotiate for new casino games in the future,
the court held that it would be an impairment of contractual obligation to
construe the 1993 amendment to defeat that expectation. This holding not
only grandfathers pre-amendment casino gaming, but permits the
addition of entirely new games.
Without getting into
detail, the idea that there is an unconstitutional impairment of contract
whenever a change in the law frustrates someone's hope that they may some
day convince the other side to amend a contract is simply not good
constitutional law. We’ll never see it again.
Having voted to
restrict the expansion of gaming, the state's residents now find that they
have conferred a monopoly on the tribes to engage in any type of gaming
that the governor might agree to and that is permitted by federal law.
of rules into unlimited grants of power. The Wisconsin Constitution
grants the Wisconsin Supreme Court superintending authority over the
courts. While the precise contours of this authority have been the subject
of debate, most of the uses of such authority have been limited to the
regulation of the litigation process to ensure the vindication of clear
legal rights. The Supreme Court can do many things related to the conduct
of litigation, but it has not typically used this authority to fashion new
rights or to manage the conduct of non-judicial officers.
v. Jerrell C.J.,[x]
involved an appeal from an adjudication of delinquency for armed robbery,
party to a crime. The juvenile appellant argued that his confession was
involuntary and the court agreed, ordering that it be excluded. But it did
much more than that. Although not necessary to decide the case before it,
the court decreed that, from now on, all custodial interrogation of
juveniles be electronically recorded. Any evidence obtained from
unrecorded custodial interrogations will be excluded.
interrogations may be a good idea. (I happen to believe that it is.) But
the court based this new rule, not on the notion that unrecorded
interrogations are unlawful or unconstitutional, but by exercising its
superintending authority to “tackle” what it deemed to be the “false
maintained that it was not mandating law enforcement practices, but
fashioning a rule of evidence. In its view, the police presumably remain
“free” to record or not record these interrogations as long as they do
not insist upon actually prosecuting juveniles who confess to a crime.
regulation because it is implemented through a rule of admissibility (and,
therefore, can be called a rule “governing the courts”) establishes a
principle with no obvious stopping point. Could the court, for example,
exclude the admissibility of all consumer contracts unless they were
formed with an array of extrastatutory “notices,” “cooling off
periods” and court-mandated disclosures—justified as a “rule of
evidence” on the proof of unconscionability or lack thereof? Might a
more conservative majority adopt a rule excluding all uncorroborated
allegations of racial discrimination in the interest of “tackling the
false accusation” issue?
the role of the legislature. Although both the state and federal
constitutions guarantee equal protection of the law, it is not unusual for
the law to draw distinctions between classes of people. Children may not
drive. Non-lawyers may not practice law. Those with hefty incomes are
taxed at higher rates than those who earn less. It is hard to imagine a
world in which everyone was treated in exactly the same way.
courts are normally quite deferential to those distinctions chosen by the
legislature, upholding them as long as they have some rational basis. Only
those classifications that are drawn on the basis of some “suspect”
classification such as race or gender or, less frequently, upon whether or
not a person has exercised some fundamental right (such as laws imposing
special taxes upon those who vote or exercise their right of free speech)
are subject to more rigorous judicial examination. Absent such special
circumstances, courts normally disrupt legislative distinctions only if
they are not rationally related to a legitimate governmental purpose.
This may no longer
be the case in Wisconsin. Ferdon v.
Wisconsin Patients Compensation
involved an equal protection challenge to a statute capping noneconomic
damages in medical malpractice personal injury cases, i.e., compensation
for things like pain and suffering or loss of society and companionship,
at $450,000. According to the court, the cap drew a distinction between
the more and less severely injured because the former would presumably
recover a lower percentage of the noneconomic damages than they have
The court rejected
the idea that it should conduct some form of heightened review. The cap,
it insisted, is a garden variety legislative distinction and is subject to
only “rational basis” scrutiny.
basis” scrutiny, the court announced, need not be as deferential as has
typically been the case. It made clear that it now intends to apply a
rational basis test “with teeth” and “with bite” that is “not a
toothless one.” Applying this new standard, the court concluded that the
damages cap was “irrational” and could not stand.
The precise contours
of this carnivorous form of review are not clear. What is clear is that
the court conducted an unusually detailed reexamination of the
legislature’s judgment that the damages cap will help reduce malpractice
premiums and restrain the cost of health care. As Judge Sykes observed, it
took the majority “seventy nine paragraphs . . . chock-full of state and
national studies” to conclude that the damages cap was not rationally
related to these legislative ends. As she put it, “if a law were truly
irrational, it would be simpler to explain why. . . .”
is one of the most extraordinary in the court's history and, if it does
not prove to be an aberration, has profound implications for a variety of
constitutional questions. It may not be a wholesale rejection of the idea
of judicial restraint, but it is most certainly a strong first step in
that direction. After Ferdon, it
is hard to imagine the statute that could not be a target for a successful
equal protection challenge.
This is 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. It is the hope of its author that
it begins now—in earnest.
Esenberg is a Visiting Assistant Professor at the Marquette University Law
[i] John Roberts' opening
statement, Senate Judiciary Committee Hearing, September 12, 2005.
Michael Brennan, “Are Courts Becoming Too Activist: Wisconsin's
Supreme Court Has Shown a Worrisome Turn In That Direction.” Milwaukee
Journal Sentinel, October 2, 2005, at 1J.
Bill Leuders, “Under Fire,”
Milwaukee Magazine, December 2005.
Diane S. Sykes, “Reflections On The Wisconsin Supreme Court,” 89 Marquette Law Review 723 (2006).
[v] Wis. Const. Art. I, § 25.
v. Hamdan, 2003 WI 113, ¶ 51, 264 Wis.2d 433, 665 N.W.2d 785.
2006 WI 44, 290 Wis.2d 121, 714 N.W.2d 495.
2004 WI 52, 271 N.W.2d 295, 680 N.W.2d 666.
2006 WI 107, 719 N.W.2d 408.
2005 WI 105, 283 Wis.2d 145, 699 N.W.2d 11
2005 WI 125, 284 Wis.2d 573, 702 N.W.2d 440.