What Kind of Justice Would Daniel Kelly Be?

In the case of candidates for the Wisconsin Supreme Court, how that candidate will act if elected is a bit of a mystery. Occasionally, a successful candidate will surprise their supporters and critics.

This is not the case with Daniel Kelly, widely viewed, and self-presented as the conservative candidate to succeed retiring Justice Patience Roggensack. In the four years between his appointment by then-Governor Scott Walker to fill out a remaining term until his defeat by Jill Karofsky in 2020, Kelly created a record that can be used to predict his future actions assuming he is successful at winning the election.

Here are some obvious predictions about a Kelly supreme court justiceship:

1.  He will join Justice Rebecca Bradley as one of the two most ideological of the conservative justices. The pair will resume making arguments based on an uncritical acceptance of views typical of the Federalist Society, U.S. Justice Clarence Thomas and a small number of right-wing law professors. One place this will show up is hostility to the so-called “administrative state,” a current bugaboo among some professors on the right.

Those challenging regulations aimed at protecting the environment or at controlling climate change, for instance, are likely to encounter a receptive audience in the two justices. The argument is that by establishing these “unelected” agencies, legislatures have surrendered too much of their power.

This argument was reflected in the Koschkee decision, in which the court’s conservative majority upheld a requirement that the Superintendent of Public Instruction (at that time, Tony Evers) get the approval of the governor (at that time, Scott Walker) before issuing a rule. The author of that decision, Roggensack, included Paragraph 17: “We have long recognized that the delegation of the power to make rules and effectively administer a given policy is a necessary ingredient of an efficiently functioning government.”

In joining Roggensack’s opinion, Kelly and Bradley both made it clear that their approval did not include paragraph 17.

Despite the obvious conflict of interest for the legislature to redraw its own districts, opposition to the regulatory state argues that doing so strengthens democracy.

2. I would expect that Kelly would continue to be an enthusiastic supporter of “original action.” This is when a case bypasses the district and appeals courts and goes directly to the Wisconsin Supreme Court. This practice appears most likely when the case is most aligned with partisan interests. In doing so, the Supreme Court gives the message that it believes that it has little to learn from the analysis of at least four other judges (one at the district level and three on an appeals court panel).

An extreme example of this practice was a case called SEIU v. Vos. This stemmed from a series of laws passed during the lame duck period between the 2018 November election when Evers defeated Walker for governor but before Evers took office. These laws had the effect of putting restrictions on the newly-elected governor and attorney general, restrictions not needed when both officers were Republicans.

Even though the appeals court had just started to consider an appeal, the court’s conservative majority consisting of Bradley, Kelly, Roggensack and Annette Ziegler, took control of the appeal. The other three justices, Shirley Abrahamson, Ann Walsh Bradley, and Rebecca F. Dallet, dissented: “this court should not reach down and assume jurisdiction of the appeal without giving the parties notice and an opportunity to be heard.”

Several years later when the conservative court majority upheld most of the laws, it explained its action as follows:

The court having taken notice that an appeal, Service Employees Int’l Union v. Vos … is pending in the court of appeals involving, inter alia, the constitutionality of certain provisions of 2017 Wisconsin Act 369 and having concluded that the interests of the state would be best served by the appeal bypassing the court of appeals and proceeding in this court, and upon this court’s own motion, IT IS ORDERED that this court hereby assumes jurisdiction of the appeal … When this court assumes jurisdiction of an appeal upon its own motion … it acquires jurisdiction over the entire appeal, including motions pending in the appeal. Accordingly, the motion for temporary relief pending appeal that has been filed in this appeal will be decided by this court based on the briefs already filed.

Conservatives like Kelly like to repeat a claim often attributed to John Adams: the United States is a nation of laws, not of men, meaning that all are treated equally no matter how exalted their status or connections. Yet the outcome of SEIU v. Vos says that Republican governors enjoy one set of laws, which will become much more restrictive if the voters elect a Democrat.

3. We can expect Kelly to author a bunch of dissents and concurrences aimed not at resolving the particular issues at stake, but at advancing some view of Kelly’s about how to interpret sone part of the Constitution.

This practice seems to stem from a quote from Chief Justice John Marshall’s observation in Marbury v. Madison that:

It is emphatically the province and duty of the judicial department to say what the law is.” Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

Kelly’s interpretation of Marshall’s statement would turn the courts into an all-purpose Constitution interpretation machine, rather than a body that interprets only when need to resolve “cases” and “controversies.”

Although the coming election is officially non-partisan, it is widely agreed that in practice Supreme Court elections have become highly partisan.

Kelly’s campaign website describes him as someone who will “prevent judicial activism,” and “an experienced and trustworthy judicial conservative who will apply the law as it is written, rather than legislate from the bench.” Yet he seems to lack self-awareness that would tell him that his view of the law and the Constitution is not the only legitimate such view. His attacks on the other conservative candidate in the primary suggest someone primed to attack anyone who dares to disagree with him.