Tuesday, March 07, 2006

The legal bombshell - Sykes spikes state supremes

I have now read Judge Diane Sykes' speech at Marquette and the Charlie Sykes' tease did not fizzle. She talked some serious legal smack. You can read her remarks here. Although they are measured and judicious, they are a withering indictment of the Wisconsin Supreme Court and the way in which it views its role in our system of government.

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:

Fundamental to separation of powers is the principle that it is the prerogative of the legislative branch to evaluate the effectiveness of statutory solutions to social problems, and to decide whether the inevitable trade-offs are acceptable and the allocation of economic burdens and benefits are appropriate to the circumstances.

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.


elliot said...

So what do we do about it?

Rick Esenberg said...

Good question. As Sykes points out, one of the things that is so insidious about it is that it's hard to do anything. While the Wisconsin Supreme Court is elected, they serve ten year terms and can be a long time between a decison that gets the public's dander up and reelection.

And people don't challenge sitting Justices. Justice Crooks, who seems to have "grown" in office and generally provides the fourth vote on these cases, is up for re-election next month, but he is unopposed.

One thing that will really help is keeping a Republican in the governor's chair. With ten year terms, it's not surprising for justices to leave the court mid-term and the Governor appoints a replacement.