Republicans Want Activist Judges?

Republicans on the Legislature’s Joint Finance Committee and Assembly want judges to do what so many conservatives decry as inappropriate – legislate from the bench.

The JFC and Assembly approved a budget amendment that would force judges to divine legislative intent and to block municipalities from enforcing any ordinance that “defeats the purpose” or “violates the spirit” of a state law.

The amendment would, according to the Legislative Fiscal Bureau, “prohibit a political subdivision, defined as a county, city, village, or town, from enforcing an ordinance if any of the following applies: (a) a statutory provision expressly prohibits the political subdivision from enforcing the ordinance; (b) the ordinance logically conflicts with a statutory provision; (c) the ordinance defeats the purpose of a statutory provision; or (d) the ordinance violates the spirit of a statutory provision. The provision would be effective on the effective date of the budget bill.”

Conservatives have typically argued that judges should stick to the text of the law and the constitution when making rulings, rather than getting into interpretive areas like the spirt of a law.

And whose interpretation of the spirit or purpose of the law are judges supposed to accept? That of the sponsors of the original legislation? What if the interpretation is different between legislators? Inevitably, this would seem to require activism by judges, which is what the Republican-dominated JFC and Assembly usually oppose. As have judges appointed by conservatives like Gov. Scott Walker.

Supreme Court Justice Rebecca Bradley, for example, has said “Justices should apply the law as it is written, guided by principles such as judicial restraint and respect for the separation of powers among the three branches of government.”

And Justice Daniel Kelly, in his application for a Supreme Court seat, echoes U.S. Supreme Court Chief Justice John Roberts’ comparison of a judge’s role to that of a baseball umpire who only calls balls and strikes.

“Changing the decisional standard after the act has already occurred is, by definition, antithetical to the rule of law,” Kelly wrote. “So, for example, it is unjust to change the strike zone after delivery of the pitch because it prevents the pitcher from knowing where to throw the ball.”

He continued: “Post hoc adjustment of the strike zone is the essence of judicial activism. It usurps the legislature’s forward-looking function by reading into the past a new rule of decision. It causes the law to lose both its certainty and its predictive capacity. People are no longer able to plan their actions to comport with the law. They are at constant risk that today’s lawful behavior may be transformed into unlawful tomorrow should a judge exercise legislative, instead of judicial, authority.”

And it’s not just Supreme Court justices who eschew the kind of activism being pushed by Joint Finance and the Assembly.

Appeals Court Judge Timothy G. Dugan, appointed to his post by Walker, wrote in his application that “Courts do not have the authority to attempt to cure what judges perceive as social wrongs or problems that the legislature has chosen not to address. Those policy decisions rest in the hands of the legislature.”

And Sauk County Circuit Judge Michael P. Screnock, running as a conservative for State Supreme Court, said in his Circuit Court judicial application to Walker, “It is important to our system of government that the judicial branch take care not to usurp the roles of the other two branches when called upon to interpret and apply the laws. Accordingly, I believe strongly that while it is the role of the judicial branch to say what the law is, as Chief Justice Marshall declared, it is not the province of the judiciary to decide cases on its view of what the law ought to be.”

This proposal could leave courts to guess at the unspoken desires and intents of the Legislature, even though those may vary greatly among legislators. But unless amended by legislators or Gov. Walker’s powerful veto, it will become the new law of the land in Wisconsin.