Tuesday, April 01, 2008

Another thought on judicial activism

We are often concerned about the imperial Presidency and the lack of any effective limitation on executive power. Much of the concern about the Bush administration;s claims of executive authority relates not to what it has done, but what a President with the type of power that he claims might do.

We also worry about an activist judiciary and we argue about this or that case. But what we should also be focused on is the authority that a court claims to have. Since Louis Butler joined the Wisconsin Supreme Court, a majority has stakes some extraordinary claim to judicial power.

In Ferdon v. Patient's Compensation Panel, the Court struck down certain limits on damages in medical malpractice cases. Those limits may or may not have been a good idea. That's not the most important thing about the case.

The court acted in reliance on the state constitution's guarantee of equality or,as it has come to be put, equal protection of the laws. The federal constitution has a similar guarantee. The court said that the law discriminates between the more and less severely injured. (There is a huge problem with that way of looking at it; but that's beyond the scope of this post.)

These guarantees are important but they present a problem for judges and lawyers. The state treats people differently all the time. I can practice law while many of my readers can't. But some can practice medicine and I can't. Those who are under 16 can't get a drivers license. Those who earn over a certain amount pay higher tax rates. Kids that can't get good grades and high ACT scores don't get into UW. The list is endless and government could not possibly treat everyone equally.

To address this courts have developed a multi-tiered level of analysis for equal protection. Distinctions based on things like race which you know to be almost always invidious get what is called strict scrutiny. The state can't do it unless the distinction is necessary to achieve a compelling interest. Other distinctions that are similar but not quite as suspect get a heightened, but not so strict, form of scrutiny.

Every thing else gets what is called "rational basis" scrutiny. The state can make a distinction - say cut off a tax break for those earning over $ 100,000 - as long as there the state's has a legitimate objective that has a rational relation to the distinction.

The Ferdon majority said that the distinction created by the malpractice caps are subject only to rational basis scrutiny but announced that it would now apply what it called "rational basis scrutiny with bite."

It then went on, for pages and pages, to discuss disputed studies about the impact of malpractice damage caps and concluded, essentially, that they were not a good idea. It was one of the more brazen usurpation of legislative authority that I have ever seen. As Judge Sykes said in her Hallows lecture, the court’s new “rational basis with teeth” standard does is "transform judicial review into an exercise in political policy judgment, leaving more room for judicial displacement of legislative judgment." I can imagine few statutes upon which reasonable people differ that would not now be vulnerable to equal protection challenge.


John Foust said...

"... what a President with the type of power that he claims might do."

Lordy, you crack me up. A wonderful April Fool's joke! This is a perfect imitation of a conservative slowly waking up to the notion that the Bush might've made a mistake.

Anonymous said...


Kind of like the democrats who are starting to realize that the Clintons are compulsive iiars huh?

Brett said...

The upshot of a contrary opinion is that the legislature can pee on your leg but tell you it's raining. Here's where your oversimplified-let's-defer-to-the-recently-departed-Judge-Sykes, goes awry. Legislative "policy" decisions were not at issue in Ferdon. Legislative findings were. Simply saying there's a crisis due to "frivolous" (a word abused about as much as "activist") lawsuits doesn't necessarily make it so. The Court is entitled to peer behind the curtain, and, in Ferdon, guess what they found?

Anonymous said...


The Supreme Court owes real deference to legislative acts.

Legislative acts are presumed, in our system of government, to be constitutional.

This court has abrogated to itself the right to make this policy decision, and it was a policy decision.

In Wisconsin there is no 'Congressional Record'. There are no legislative 'findings'.

The legislature wrote a law that set certain dollar awards at what the peoples' representatives believed was a reasonable level. The Court, in its wisdom, decided to rewrite that law. There was no justice in that decision, and little intellectual modesty.

It seems clear that you like this decision or outcome and thus the process of overriding the legislature to make new laws is appealing to you. Unfortunately, if this trend continues an unelected court will eventually create legislative that is not to your liking, perhaps to no one's liking, but from which there will be no appeal.

I won't be here to see it, however, for I refuse to live in a system of judicial tyranny and ultimately that is what this is about.