Thursday, February 22, 2007

Polishing off Waxing America

This morning I said I would comment on two recent posts on the Wisconsin Supreme Court on Waxing America. In my view, former Madison mayor Paul Soglin asks the wrong questions and provides the wrong answers.

First, he seems to find some kind of lesson from the Supreme Court's recent decision in Phillip Morris v. Estate of Williams. This was a case, decided earlier this week, that reversed a huge award of punitive damages against Phillip Morris in a smoking case because the jury may have based its award on harm done to persons other than the plaintiff. The majority drew a (probably too) fine distinction between that and considering harm to others in determining how reprehensible the conduct was.

For Soglin, the key is that two Justices who are generally regarded as "liberal" voted with the majority to set the award aside. In other words, they voted for "Big Tobacco." This, according to Paul, shows that "the liberals on the Court prefer fair and impartial justice." Apparently this is supposed to tell us something about liberals everywhere.

The split in Williams was not along what are generally regarded as the court's ideological divide. While "liberals" Breyer and Souter were in the majority, so were "conservatives" Alito and Roberts. The dissent consisted of "liberals" Stevens and Ginsburg (do they not "prefer fair and impartial justice?") as well as "conservatives" Thomas and Scalia (voting against "Big Tobacco" but apparently no lesson about conservative jurists in that).

Part of this is because the issue was narrow. Part of it points to the lack of a parallel between the "judicial activism/restraint" debate and the "liberal/conservative" debate. Scalia and Thomas dissented because they don't want to read into the federal constitution a substantive limit on punitive damages in state courts. That has nothing to do with whether they like business or favor punitive damages. It has everything to do with the way in which they feel constrained by the actual text of the constitution, i.e., what it actually says.

Second, Paul lists a a number of positions that Wisconsin Manufacturers Commerce has taken on recent legislation proposals that he doesn't like. Because WMC has endorsed Annette Ziegler, he concludes that these positions represent her "platform" because, he says, she will do "whatever the WMC wants ... ."

I happen to think that most, if not all, of the positions that Soglin dislikes are correct. But were I on the Supreme Court, I could do nothing to bring about any of these policies (with the possible exception of the standard for strict liability and probably not even that) because they are within the prerogative of the legislature and not the courts. Neither existing law nor the Wisconsin or US Constitutions mandates a limit on how much taxes can go up or the establishment of health savings accounts. Nothing precludes the legislature from mandating union featherbedding on the railroads. While the Supreme Court could set a standard for punitive damages, the legislature has done so and this is the standard that the courts must follow. A judge who follows the judicial philosophy that Ziegler claims to follow couldn't do anymore than I could.

What would be astonishing is if the Wisconsin Supreme Court held that the legislature could not pass TABOR or adopt HSAs or if the court went out of its way, manipulating doctrine, to interfere with the operation of these laws. My guess is that WMC is basing its endorsement on a judgment regarding the likelihood of each candidate doing that. In endorsing Ziegler, it may be acting unfairly toward Clifford, but the idea that the Wisconsin Supreme Court is going to implement this stuff is simply wrong,


Todd said...

Are you being paid by the Ziegler campaign?

This article makes it seem that way.

Rick Esenberg said...

Absolutely not. I have no connection with the Ziegler campaign.

I am being paid a small honorarium by the Federalist Society to write a white paper on the Court, but how much, if any, will actually go into my pocket is unclear. That paper will take no position on - or even mention - the candidates.

Rick Esenberg said...

I should add, moreover, that the views expressed in that white paper are entirely my own. Many, in fact, have already been expressed on this blog or in the Milwaukee Journal-Sentinel.