Thursday, March 15, 2007

Instructive comments in the Supreme Court race

Yesterday, I suggested that Linda Clifford's comments on the state Supreme Court's decision striking down limits on medical malpractice caps was instructive on the issue of judicial activism.

I think it is helpful to use a candidate's comments to illustrate the issue because many people commenting on the race - people like John Nichols, Dave Zweifel, Bruce Murphy and Bill Leuders - seem to have no conception at all of what they are talking about when it comes to questions of activism versus restraint.

Although some of them have lamented "partisanship" in the race, ideological partisanship is, ironically, the only lens through which they seem able to view it. Decisions, in their mind, are either "conservative" or "liberal. Although Zweifel and Nichols seem to be such strident partisans that they regard liberal decisions as rooted in a neutral principles in a way that conservative decisions are not, Murphy and Lueders seems to adopt a more cynical stance, i.e., "activism" is in the eye of the beholder.

To some degree this is self-evident. Pure objectivity is generally beyond us, but there is, nevertheless, a constellation of approaches to judging that can objectively be called activist and this is where Ms. Clifford's comments (like her previous onservation that the constitution must be allowed to "breathe" and give society "what it needs") are instructive.

"Three hundred and fifty thousand dollars is an insufficient amount in this day and age,”she said. “Whether the cap was categorically unconstitutional or arbitrarily too low, I think the result was correct.”,”she said.

Unless the cap was, as she puts it, "categorically unconstitutional" then the result was wrong. These malpractice caps were enacted by the people's democratically chosen representatives. Unless they are, for some reason, "categorically unconstitutional" then the court has no business setting them aside - whether or not Linda Clifford or a majority of justices think they are "too low." While our state's constitution does place certain limits on the legislature, the policy preferences of a majority of justices on the state's supreme court are not among them.

Some of you might wonder why we should care. Isn't this just geeky lawyer stuff? If the result is right, why worry about whether it was legitimate? The answer goes to the very foundation of democracy. Judges get to set aside the actions of our elected officials only when those actions violate some constitutional limitation on what election officials are permitted to do - not because judicial officers believe that "in this day and age" the legislature has chosen poorly or society "needs" something else.

Judicial restraint is normally associated with conservatives because, in recent years, judicial activism has generally been deployed in the furtherance of liberal causes, but that has not always been the case. As I have blogged before, the sort of ur-activist decisions are the notorious Dred Scott case and a later decision (1905) called Lochner v. New York in which the Court rolled out a concept called substantive due process (a bit of an oxymoron) to advance an extra-constitutional theory of property rights. (Lochner struck down a law limiting the hours that one could work in a bakery.)

Let's flip the malpractice caps. Say the legislature decided to remove them. A restraintist conservative judge (think of me) might regard that as poor public policy, but the legislature would be absolutely within its rights to do so - or even to enact other legislation that might be helpful to malpractice plaintiffs in a way that I think would harm medical care in the state. "Doing whatever is right" or "giving society" is simply not an accurate description of the judicial function. If you want to do those things, run for the legislature or for Governor.


James Rowen said...

Just on the point of judicial activism, I think that's in the eye of the beholder, too - - and hence something of a false issue.

Conservatives have used the term to attack decisions by more liberal judges and justices, but how about a recent US Appeals Court panel's 2-1 ruling in the DC gun control case, where something like nine earlier rulings were overturned to strike down the DC law.

Conservatives hailed the decision because they disagree with gun control - - but I'm guessing that if a court struck down a law or ruling as equally dear to the right, conservatives would be all over that court for...activism!

Anonymous said...

I agree that the Supreme Court has to have constitutional grounds to overturn a legislative law. However, it appears to me that
Clifford does not know the grounds that the Supreme Court used and perhaps should have deferred her answer.

Anonymous said...

Well, sure she knows the grounds. They were unconsitutionally low and arbitrary. The legislature does NOT have unfettered authority to set the law. They have to ensure that the laws they pass do not violate the consitution of WI or the US, and they have to demonstrate a rational basis for the law in the event that the law infringes upon a constitutional principle (it is more complicated than that, but that is it in a nutshell).

Question: Is it judicial activism to overturn Roe v. Wade? After all, Congress has had ample opportunity to explicitly respond to Roe v. Wade and has failed to do so.

Activism is in the eye of the beholder...


Anonymous said...

Why doesn't the adjunct professor at the fourth-tier law school run for the Supreme Court next time?

Maybe then he can help a conservative like Supreme Court Justice Patrick Crooks stay on the straight and narrow! It was Crooks, after all, who provided the 4th vote needed to strike down the prior limit on noneconomic damages in medical malpractice cases.

Anonymous said...

Anon #3
Marquette is not a fourth-tier law school. And if you did your research you would find that Prof. Esenberg graduated from Harvard magna cum laude.

Anonymous said...

this is not really about the comment. i'm david ziemer and i read your aricle on a court unbound, which cited an article i wrote. the footnote states that there is no analysis of the 05-06 term, but there is one. i'm not sure when you wrote the paper. it may not have been out yet. anyway, if you want one, you can contact me.

Anonymous said...

"Marquette is not a fourth-tier law school."

I looked it up and must concede that you are right. While Marquette is not a fourth-tier law school, it is in fact a third-tier law school.

The original question still stands, albeit with a minor modification: Why doesn't the adjunct "professor" at the third-tier law school run for the Supreme Court next time?

One of the candidates running for the Supreme Court this time around graduated from a top-tier law school, in case you are interested. That's one qualification with the adjunct "professor" and others like to forget about.