I doubt the Chief Justice of the Wisconsin Supreme Court reads this little blog, but I do want to use it to acknowledge my gratitude for her willingness to speak to my class last night. I don't always agree with the Chief, but I have a great deal of respect for her and I hope that students enjoyed the opportunity to hear from her.
As for me, I got to thinking a bit more about judicial philosophy. A couple of law professors have done a study seeking to rank the most and least "activist" justices on the United States Supreme Court by looking at their tendency to set aside federal agency determinations. They also rank them on a liberal/conservative scale.
There are a number of problems with the study, some of which are set forth here, but it seems part of a move on the some to define judicial activism as upsetting the decisions of other branches. I suppose that we can all define these things in different ways, but I don't think that quite captures what we are concerned about when we speak of judicial restraint. Here are three base characteristics of restraint that I called out in a recent article in WI Interest:
1. A judge exercising restraint must act on external and legitimate sources of authority.
2.A judge must believe that rules mean something.
3.Judges practicing restraint will exhibit sensitivity for the role of other branches of government.
Of course, few judges would not claim to endorse these and few do not see themselves as applying them in greater or lesser degree. They are really the beginning of a conversation more than it's culmination. Still, I think that there are a host of interpretive techniques that serve these goals and that judges do differ in the extent to which they adhere to them. (Few do not adhere at all.)
That this can't quite be captured by the extent that courts strike down laws can be illustrated by a tale of three administrations. Let's imagine that the George administration and a quiescent Congress, seeking to fight the war on Terror, consistently pass legislation and take executive actions that violate fourth and fifth amendment rights. Courts during the George era will have to overturn more executive and legislative decisions than normal, but I think it would be a mistake to say they have become activist.
Similarly, let's say that the George administration is replaced by the Hillary administration. That admininistration, again abetted by a compliant legislature, tries to expand federal authority in ways that are clearly unconstitutional and seeks to adopt restrictions on campaign advertising, "hate" speech and public religious expression that are plain violations of the First Amendment. Our courts are still throwing stuff out, but are they activist?
Finally, an exhausted populace turns to the Calvin administration. It advocates a return to "Normalcy" and adopts only the most modest of policies. Our courts - let's assume that we have all the same judges - suddenly start affirming most legislative and executive enactments. What changed?