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In April vote, keep politics out of court

On April 2, voters will elect someone to a 10-year term on the Wisconsin Supreme Court—and the result will greatly affect the philosophical balance of the court. Because the judicial branch impacts every one of us, Wisconsinites should do their homework and analyze how each candidate views the proper role of the judiciary.

Many Wisconsin Supreme Court justices practice judicial restraint by applying the law as written by the legislative branch. This is the proper role of the court, as outlined under the framework of the Constitution; the Legislature makes the laws, which are then interpreted by the courts. Of course, a law can and should be ruled unconstitutional but only when it clearly violates the text of the Constitution and not because a judge disagrees politically with the law.

Legislators are responsible for writing the laws because they have daily interactions with the people, publicly debate the issues, and are directly accountable to voters for their decisions. In comparison, judges, who are trained in the law, are to independently analyze the facts of each case and apply the law as written by the Legislature.

When judges mix these roles and replace what the law says with what they prefer the law to be, judges are replacing the rule of law with their own political preferences, which is referred to as judicial activism. Judicial activism disregards the separate and independent roles of the legislative and judicial branches and calls into question the integrity of the court.

Judicial activism has also proved harmful for Wisconsin’s economy. In 2004, with the appointment of Justice Butler to replace Justice Sykes, the court majority shifted from one of judicial restraint to an activist approach. The decisions of the new majority made national headlines because the opinions started to blur the roles of the judiciary and the Legislature.

In a number of cases, the court practically rewrote laws to suit justices’ own political beliefs. In one notable instance, the court adopted a completely new theory of product liability—different from what was signed into law—and declared that manufacturers would be liable for all injuries from their products regardless of whether they even made the product in question.

In part because of this ruling, Wisconsin’s business legal climate went from ranking in the top 10 to being one of the worst. The Wall Street Journal tagged Wisconsin as “Alabama North” in reference to how we were a trial lawyer’s dream.

Next session, the court will decide a number of significant issues regarding the constitutionality of state laws. As the Supreme Court campaign gets under way, Wisconsinites should look to elect a judge not on that person’s political beliefs but on his or her ability to practice judicial restraint and protect the integrity of the court.

This column is distributed by the Federalist Society, an intellectual network aiming to highlight the role of the courts in everyday life. The authors, however, are sharing their own opinions rather than speaking for the society as a whole. Heather Berlinski is a government affairs associate at The Kammer Group in Madison. She graduated from Marquette Law School in 2011. Email hb@thekammergroup.com. C.J. Szafir is associate counsel and education policy director at the Wisconsin Institute for Law and Liberty. He is a graduate of Marquette Law School. Email charles.szafir@gmail.com.