By Rick Esenberg
(Rick Esenberg is the President of the Wisconsin Institute for Law & Liberty. The views expressed here are his own and are not on behalf of the organization.)
Some like to say that judges should be neither conservative or liberal. While I think that aims at an important truth – judging is not about reaching a particular political result – it ignores very real differences in judicial philosophy. There are “conservative” and “liberal” judges, but it is important to understand what this means. Both operate, for the most part, within a common legal culture and discipline. But conservative and liberal judges tend to differ both in the way they read the Constitution and their sense of what our state and federal constitutions were designed to do.
In simple form, conservatives are more likely to emphasize the text and history of the document, preferring its “original” meaning. They ask the words say and what would they have meant to the public at the time they were adopted. This generally, but not always, results in a jurisprudence that emphasizes the Constitution as a set of restraints and checks on the power of government and not as something that shapes or advances particular political outcomes.
Liberal judges tend to prefer more expansive interpretive methods that move beyond the text and its history. They argue that the neutrality sought by conservatives is itself political and are more likely to read the Constitution in light of emerging progressive goals. Liberals are less sympathetic to structural restraints on government authority or general and universal claims of individual liberty – say freedom of speech or religion (which must yield to the interest of certain minorities) or the right to earn a living – and more open to the notion that the Constitution has special solicitude for certain minority groups and a more narrow set of specific personal freedoms, e.g., the right to choose to have an abortion or other freedoms against the imposition of conventional morality.
A case in point is the current state Supreme Court race between Milwaukee County Judge Rebecca Dallet and Sauk County Judge Michael Screnock. Make no mistake about it. Dallet is the liberal and Screnock is the conservative. For example, Dallet initially appeared to attacked Screnock for emphasizing the rule of law:
He’s talking about all this rhetoric about rule of law garbage that is basically — it’s rule of law until it’s something you want changed and then you just go ahead and change it. He’s just saying the same tired old thing that doesn’t mean anything.
When called on the statement, Judge Dallet said that she “believes” in the rule of the law and that her garbled comments meant to charge Screnock with being willing to change the law to whatever he wants it to be. Fair enough. But Dallet has also taken great pains to emphasize what she calls “values.” It turns out that those “values” are not the ones – or at least not only the ones – that judicial candidates normally emphasize – the rule of law, fairness, fidelity to the text, equality before the law, etc. To the contrary, her values – the ones that you need to know about in order to vote for her – turn out to include political positions and opposition to Donald Trump.
Dallet has ads attacking Trump and has explicitly associated her campaign with a recent Democratic special election in Pennsylvania, claiming that Wisconsin is “next.” Her judicial values include “a strong public education system, clean air and water, the rights of working people to organize” and taking on “vestiges” the “racial and patriarchal system.” Some of these are supported by just about everyone but the critical thing is that how to achieve them are, for the most part, policy choices for the legislature and governor. To suggest that they ought to inform judicial decision-making is to suggest a significant expansion of the role of the courts.
For example, Judge Dallet has criticized the Wisconsin Supreme Court’s decision to uphold Wisconsin’s famous “Act 10” – landmark changes restricting the collective bargaining privileges of public employees. Act 10, she says, infringed on the freedom of association. But courts have historically distinguished between the constitutional freedom of association and the statutory privilege of collective bargaining which involves not merely association but a complicated set of legislatively created obligations and entitlements. Government must listen to and negotiate with unionized workers. It has no such obligation with respect to any other group. To say that unionized workers are constitutionally entitled to that privilege would be a radical transformation of the First Amendment. It would mean, for the first time, that the state has an obligation to amplify the voices of some – unionized worker
Judge Dallet’s emphasis on political values is instructive. A major part of the progressive legal project has been to argue that the law can advance a left-of-center political vision. It has argued that the structural limits on the power of government can be read away. It has said that terms like “liberty” and “due process” of law can be read to impose on the government obligations to enact positive programs or run public institutions in a particular way. The law can “evolve” – it can become something else entirely. Put more bluntly, the rule of law actually is the law only “until you want to change it.”