Some thought on judicial activism

I have sort of a love/hate relationship with that term. It gets misused a lot. I'd prefer to replace it with something else, but we don't always get to choose our language. In speaking to my Wisconsin Supreme Court last fall, Chief Justice Abrahamson saif it was a "slur" that was "meaningless." I agree that it can be used in that way, but I think that she left most of my students unpersuaded.

I made preliminary efforts to address the issue in the Wisconsin context here and here. Judge Sykes' 2006 Hallows Lecture at Marquette University Law School is masterful. I tried to show what types of issues may be affected by these and other philosophical differences here.

I just want to hightlight a few cases that demonstrate what we are getting at. This issue is a harder topic for general debate but it's important to keep in mind.


Dairlyland Greyhound Park v. Doyle

The case is, of course, complicated but not so much so that it can't be understood and distilled as follows:


In the early '90s, the voters passed an amendment banning casino gaming in the state. At the time the amendment was passed, there were compacts between the state and certain Indian tribes permitting such gaming on reservations. The compacts continued in place after the amendment was passed.

After Jim Doyle was elected governor, he entered into renewed and amended compacts which comprised an enormous expansion of casino gaming in exchange for large amounts of tribal cash. He wanted it to close one of our perpetual budget holes.

In Panzer v. Doyle, a 4-3 majority held that he could not do so, holding that the new deal ran afoul of the amendment and certain other legal limitations.

Then Diane Sykes was appointed to the federal bench and Louis Butler was appointed by Doyle to replace her. On the court's docket was Dairlyland in which a dog racing track argued that the amendment actually compelled the governor to issue a notice of nonrenewal of the original compacts. The question of whether gaming could be expanded was not part of the case.

But the Court decided to revisit Panzer anyway and, in a 4-3 decision, reversed itself with Justice Butler as the swing vote and author of the majority opinion. The court wound up holding that an amendment which said that all casino gaming was prohibited actually permits the governor to agree to unlimited expansion of gaming as long as it was done by amending the pre-existing compacts.

That's a tough decision for a textualist in the mode of Scalia. In so holding, the Court suggested that it would be a violation of the US Constitution's prohibition of impairment of contract to prohibit parties from amending a contract in a way that they may have wanted to before the law prohibiting them from doing so.

You will never see the court say that again. If it does, there will have to be a conservative judicial revolution installing justices with a commitment to property rights that is not shared by any current member of the US or Wisconsin Supreme Courts.

There are thoughtful people who think this type of thing is an appropriate use of the judicial power. Others see it differently. Maybe casino gaming is a good idea. Maybe you can find a way to reconcile unlimited tribal gaming with a constitutional amendment that says no gaming. But you can't do it, as Judge Sykes says, without "departing from some familiar and long-accepted principles that normally operate as constraints on the court’s use of its power ...."