Here are a few soundbites:
"The terms "modesty" and "restraint" - the watchwords of today's judicial mainstream - seem to be missing from the Wisconsin Supreme Court's current vocabulary."
"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."
"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."
These words are harsh, but they are fair. Sykes discussed five cases and I want to digest what she had to say, but the one she began with is the one that has always disturbed me the most.
I have blogged on Ferdon v. Patients Compensation Fund before. This is the case in which the Court struck down the caps on noneconomic damages in medical malpractice cases. The caps, it held, violate the equal protection clause.
The primary problem with Ferdon is not that it abolished the damages cap. That is a bad outcome, but the larger problem is how it abolished them.
The equal protection clause cannot mean that everyone is treated equally in every way. The law must distinguish between people in a variety of ways and courts have traditionally deferred to the legislature's judgment in making those distinctions. As long as the distinction is rationally related to a legitimate purpose, the distinction does not violate the guarantee of equal protection.
Only when a "suspect" classification such as race is used or, sometimes,when a distinction turns on the exercise of a fundamental right, do courts engage in more exacting scrutiny of what the legislature has done.
There is a reason for this. It has generally been thought that the political branches are best suited to make policy judgments which often turn on disputed and conflicted facts and values.
In Ferdon, the Wisconsin Supreme Court essentially said that it would no longer do this and that it would apply something called rational basis scrutiny "with teeth." It then went on to cite a studies that, in its view, showed that malpractice damages caps are a bad idea. The dissent cited just as many that showed they are a good idea.
Judge Sykes' point is that it is not the Court's job to evaluate conflicting policy arguments and decide what is "best." This, she says, "is a political policy judgment, not a legal one." She said:
The failure of courts to respect that principle doesn't just violate some abstract high school civics ideal that no one should care about. It frustrates the democratic process.
Judge Sykes has given an important speech. I suspect I'll be returning to it later.