For 10 years, at least a majority of the Wisconsin Supreme Court has generally remained committed to the rule of law and faithful to the text of the Constitution. But when one considers what a more activist judiciary would look like, it’s easier to fully appreciate the stakes for Tuesday’s election to the Wisconsin Supreme Court between Judge Brian Hagedorn and Judge Lisa Neubauer.
In 2006, Judge Diane Sykes of the U.S. 7th Circuit Court of Appeals gave a seminal lecture to Marquette Law School reviewing a recent term of the Wisconsin Supreme Court. The Court’s majority had recently authored a major decision expanding tort liability for businesses, specifically permitting lawsuits against lead paint manufacturers even if the plaintiff could not identify the business that manufactured the paint causing injury. Their other opinions changed state law to remove the state’s cap on non-economic damages in medical malpractice cases and reinterpreted the Constitution to penalize law enforcement by mandating suppression of evidence if police failed to give Miranda warnings.
Sykes concluded that the Court’s judicial philosophy was “pure unvarnished result-oriented” and their decisions were akin to “impos[ing] its own solutions to what it perceives to be important public policy problems—civil and criminal—rather than deferring to the political process.”
Similar critiques were echoed nationally. As a result of the Court’s decisions, the Wall Street Journal Editorial Board blasted Wisconsin as a “favorite trial lawyer destination” and one that would “soon have every trial lawyer in America descending on the state.”
In 2008, Judge Michael Gableman beat incumbent Justice Louis Butler, flipping the ideological balance of the Court and ushering in a more judicially “restrained” (some may say “conservative”) majority, which focused less on policy outcomes and more on the text of the statute and Constitution. This majority was strengthened in 2016 with the election of Justice Rebecca Bradley and appointment of Justice Dan Kelly on the Court by Governor Scott Walker. Originalism and textualism became more mainstream.
Yet, had the 2008 or 2016 (and other elections) gone differently, the last decade of Wisconsin Supreme Court jurisprudence would likely have rolled back a number of conservative priorities. To appreciate the importance of judicial philosophy, one only needs to only look at the dissents of Justice Shirley Abrahamson – who’s legacy Neubauer supports. Consider:
Act 10: Walker’s historic collective bargaining reform law had to survive a number of legal challenges. Once in the Wisconsin Supreme Court, it was finally upheld on a strong 5-2 vote. But Abrahamson dissented, essentially arguing that unions had some sort of constitutional right to organize, something that is completely unfounded in the Wisconsin Constitution.
Concealed Carry: In a case about interpreting the concealed carry law, the Wisconsin Supreme Court in 2017 held that the City of Madison had no authority, under state law, to ban firearms on buses. From a judges’ standpoint, it was a clear case; state law prohibited cities from passing ordinances restricting someone’s ability to carry a firearm than what was enacted in state law. The City of Madison had clearly done so. Yet Abrahamson disagreed and if the dissent held the day, municipalities would have had an easier time to carve out exceptions to the Concealed Carry laws.
Voter ID: Walker and the Republicans in the legislature signed a voter ID law that requires voters to show photo identification when they go to the polls. After a legal challenge, the Wisconsin Supreme Court upheld the law. Once again, Abrahamson led with a vigorous dissent, comparing the majority’s decision to “Jim Crow”, even though Wisconsin’s voter ID law is commonplace and burdens with obtaining a photo ID not onerous.
School Choice: While not in the last decade, I would be remiss not to point out Abrahamson’s dissent in a 1998 Wisconsin Supreme Court case that upheld the constitutionality of the Milwaukee school voucher program. Had her ideology carried the day, the school voucher program would unlikely exist, at least in its current form. Neubauer on the campaign trail would not comment on her thoughts about the Establishment Clause and constitutionality of school choice. More on this here.
Fast forward to today. There’s no question that a Wisconsin Supreme Court full of judicial activists would send Wisconsin back generations, chipping away – or flat out reversing – a number of conservative priorities and Walker reforms. When judges insert their own policy preferences – instead of the text of the constitution and statute – we get “pure unvarnished result-oriented” decisions. The importance of the Constitution is diminished. The separation between the legislature and judiciary blurs.
This is why when Wisconsinites go to the polls on Tuesday April 2, they should first read about the candidates’ judicial philosophy (or watch the recent Marquette University Law School debate) to determine for themselves which candidate will be faithful to the text of the constitution and the law, regardless of their political beliefs.
CJ Szafir is the Executive Vice President of the Wisconsin Institute for Law & Liberty (WILL). These views are his own and do not represent an official opinion of WILL.