COMMENTARY: Ask questions in this high-stakes state Supreme Court race
By: By TIM CASEY and KATIE LONGLEY, The Daily Telegram
On April 1, Wisconsin voters will elect a justice to the Wisconsin Supreme Court. The stakes are high: Along with the legislature and governor, the Supreme Court is one of the three co-equal branches of our state government, and its decisions affect our lives on a daily basis.
April’s election is particularly important because it comes at a time when our Supreme Court is undergoing intense scrutiny within the state and nationally. Serious questions are being raised about a trend in the Supreme Court’s jurisprudence toward “judicial activism” — that is, decisions that are based on the justices’ own personal views rather than on a fair and impartial interpretation of the law. The Wall Street Journal has noted with alarm Wisconsin’s trend toward “judicial activism.”
This trend runs contrary to the wishes of the majority of Wisconsinites. In a statewide poll of Wisconsin voters during last year’s supreme court election, 72 percent thought that judges should interpret and apply the law as it is written and should not take into account their own personal viewpoints and experiences.
A candidate’s judicial philosophy—whether he will be activist or will practice restraint — should be the critical factor in deciding which candidate deserves your vote. Because most activists will not admit to activism, it is important to ask the candidates the right questions. We suggest the following:
1. What is your judicial philosophy?
A candidate who believes in judicial restraint will talk about proper deference to the legislature and about applying the facts of a case to the law as it is written (not how he wishes it was written). If a candidate talks about the Constitution as “living,” “breathing,” “developing,” or “adapting,” or states that he will represent a certain perspective (as opposed to following the law), watch out.
2. How do you view the Supreme Court’s role in our system of government, especially in relation to the executive and legislative branches?
If a candidate answers this question in a way that emphasizes a healthy respect for and deference to the legislature and governor, based on their ability to reflect and implement the will of the people, he is more likely a believer in judicial restraint. If, on the other hand, he talks about the Supreme Court acting as a bulwark to protect against the policy preferences of the majority, he is more likely to be an activist.
3. Under what circumstances do you think it is appropriate for the Supreme Court to strike down a law as unconstitutional?
A candidate who believes in restraint will say he is reluctant to strike down a law passed by the legislature and signed by the governor, recognizing that is an extreme step to be taken only when a law runs afoul of the clear language or fundamental structure of the Wisconsin Constitution. An activist, by contrast, evaluates the politics and policy justifications behind the law, divorced from the language of the statute.
4. When you are required to interpret a statute that the parties in a lawsuit claim has different meanings, how would you decide which interpretation is correct?
A candidate who believes in judicial restraint will talk about the language of the statute and will recognize that a judge’s fundamental task is to determine what the legislature actually said in the law it passed. A judicial activist is concerned with what he thinks the legislature meant, even if that differs from the text of the statute, and whether the policy underlying the statute subjectively “makes sense.”
5. Are there circumstances in which judges should change their interpretation of a law or constitutional provision to reflect contemporary public sentiment?
Although it is tempting to ask judges to “fix” laws, a believer in judicial restraint understands that this is the job of the legislature and governor. What a majority of seven justices on our Supreme Court say they believe the public wants may not actually reflect the desires of a majority of Wisconsin’s five-million-plus residents.
The answers to these questions can help you decide which judicial candidate understands the proper role of the Supreme Court in our Wisconsin government, and who will be true to his oath to uphold our State Constitution and “impartially discharge the duties of said office.”
Tim Casey and Katie Longley are attorneys in Milwaukee.