Wisconsin Interest 

Bad Justice
Don't Blame the Voters for the Ugly Election for the High Court

By Charles J. Sykes

No sooner had the votes been counted and liberal Supreme Court Justice Louis Butler ousted from the state’s high court than the outrage began.

Bad voters!

Governor Jim Doyle, who had appointed Butler to the high court declared the result a “tragedy,” while liberals and their allies in the media immediately embraced voter suppression on a massive scale. Upset by the results, state Representative Fred Kessler (D-Milwaukee) proposed the elimination of elections for justice altogether and the state’s largest newspaper, the Milwaukee Journal Sentinel, embraced his call for disenfranchisement.

“After two campaigns in two years marked by sleazy ads, empty rhetoric and issues often hardly related to the actual work of the court,” the paper editorialized, it was time to strip the voters of their say in the selection of judges.

Appointing judges, rather than electing them, the Journal Sentinel argued “could help reduce the amount of vitriol and name-calling, especially from those third-party ads.” (This would, of course come as news to Robert Bork or Clarence Thomas.)

As a point of fact, the ads in the race between Butler and the eventual winner, Judge Michael Gableman were often sloppy, dumbed down, and off-putting and there was more than enough blame to go around. Mike McCabe from the left-leaning Wisconsin Democracy Campaign called an attack ad aimed at Gableman by the state’s teacher’s union, “one of the trashiest political ads I've ever seen. Pure sleaze.”

During the campaign, I criticized one anti-Butler put on the air by the Gableman campaign as “misleading and therefore dumb.”[i]

“The irony,” I wrote at the time, “is that there are more than a few legitimate rulings Butler has made that the ad could have discussed. Butler's record on the Supreme Court is an especially target-rich environment.”

Nevertheless, for much of the campaign, dueling ads from both sides seemed to reduce the election to a contest over who was most friendly to child molesters.

But it is far from obvious that the race was, in fact, determined by negative ads from either side (which achieved a rough parity by election day.) And it is far from clear that the “reform,” now being advanced addresses the underlying issue behind the increasing politicization of judicial races.

Proposals like Kessler’s and the Journal Sentinel’s implicitly hold the voter responsible for the excesses of the campaign and punish them by taking away their right to vote in Supreme Court elections. Other proposals target outside groups (the dreaded third parties) by limiting their ability to speak out on judicial decisions that directly affected their interests and livelihoods.

But most of the proposed “reforms” miss the point. The fault here lies not with the public or even the “interest groups,” but rather with the justices themselves. When judges act like politicians, the judicial selection process—elected or appointive—becomes increasingly political. Action and reaction. The politicization of the court led to the politicization of the elections for justices.

This was, of course, a matter of choice for the justices.

When Butler came on the court in 2004, he and the other members of the newly-created liberal majority could have been cautious and incrementalist in their rulings. Instead, they moved hard to the left, aggressively ignoring precedent and substituting their judgment for legislative decisions and acting as a “super-legislature.” On issues ranging from crime to tort litigation, the court’s sweeping departures from past practice drew national attention, and ultimately changed the nature of elections for justice.

In its rulings, the majority:

1.      Showed a willingness to ignore the plain language of the state constitution on issues ranging from gambling to gun rights.

2.      Changed the court’s standard for reviewing legislation to something called “rational basis with teeth” which essentially allows the justices to second-guess laws they don’t like and which one justice says turns the court into a “super-legislature.”

3.      Signaled that it might rewrite the state’s entire system of education funding.

4.      Showed a marked willingness to ignore decisions made by the U.S. Supreme Court and settled decisions of the court itself.

5.      Endorsed the principle of “new federalism” which confers greater rights on criminal defendants in Wisconsin than granted by the U.S. Supreme Court.

6.      Demonstrated a penchant for basing decisions on questionable social science research in lieu of settled law.

7.      Embraced novel and unprecedented theories for lawsuits against business that have been rejected by other states. In its lead paint ruling, the court adopted the so-called “risk contribution” theory under which producers of components of a manufactured product can be held collectively liable, even if the plaintiffs can’t prove which company’s product caused their injuries.

When Marquette University Law professor Rick Esenberg discussed these trends for the Federalist Society, his white paper was titled: “Everyone's Business: Emerging Issues in the Wisconsin Supreme Court.”

In the wake of Butler’s defeat, the left and the media are now, in essence, arguing that the court’s activism should be no one’s business. But this ignores the dramatic shift in the locus of policymaking that lead up to the Butler-Gableman donnybrook.

As the justices—including Butler—increasingly grabbed power from other units of the government and took on major policy decisions, resources and tactics previously reserved for legislative and gubernatorial elections similarly shifted to the campaign for the majority on the court. The court’s unrestrained power grab shifted authority from the electorate and elected officials to the court itself, dramatically raising the stakes—and cost—of the judicial races.

Traditionally, decisions related to issues such as education, gambling, crime, marriage, and the right to keep and bear arms had been made by voters through their legislative representatives or directly through constitutional amendments.

Since such decisions now hung in the balance of the 4-3 majority of the court, groups, including those representing business interests, who had been moved to support candidates for the legislature or governor in order to influence such policies, now were compelled to weigh in on the race for Supreme Court. Action and reaction.

The Court’s Gamble

Governor Doyle appointed Butler to the Supreme Court in 2004 to replace conservative Justice Diane Sykes, who had been appointed to the federal appeals court. (Sykes had defeated Butler for the seat by a 2-to-1 margin just four years earlier.) Butler’s appointment swung the court from conservative to liberal, and the new justice quickly made his mark, most dramatically on a case involving the constitutionality of gambling.

Shortly after he was elected governor, Doyle had entered into compacts with Indian tribes, providing massive expansions of gambling in return for cash for state coffers. In 2003, the Supreme Court ruled 4-3 in Panzer v. Doyle that the compacts were illegal, and violated the state constitution. A year later, Butler replaced Sykes on the court and the majority flipped.

Another gambling case, Dairyland Greyhound Park v. Doyle, was on the court’s docket. In the case, the dog track contended that an amendment to the state constitution should have blocked any renewal of the original gaming compacts.

As Esenberg noted “The question of whether gaming could be expanded was not part of the case.”

But the Court decided to revisit Panzer anyway and, in a 4-3 decision, reversed itself with Justice Butler as the swing vote and author of the majority opinion. The court wound up holding that an amendment which said that all casino gaming was prohibited actually permits the governor to agree to unlimited expansion of gaming as long as it was done by amending the pre-existing compacts. [Emphasis added.]

Legally, the ruling was breathtaking and it had dramatic effects for state politics, ensuring the continued flow of casino dollars into political coffers (including the campaigns on behalf of both Doyle and his appointee Butler.)

This was not the only case in which the Butler Court showed a willingness to ignore the seemingly plain language of the Constitution. Even though voters had passed a clear, unambiguous constitutional guarantee of the right to bear arms, Esenberg noted, “The Court has handed down decisions upholding broad enforcement of Wisconsin’s preexisting statute prohibiting concealed carry.”

Had Butler been reelected, it is an open question whether the court’s majority would have similarly read out of the state constitution the newly passed ban on gay marriage and civil unions.

The Super Legislature

On August 9, 2005, the court drew national attention, when a Wall Street Journal editorial headlined “Alabama North,” focused on two of the Butler Court’s decisions, a decision involving lead paint and one tossing out caps on non-economic damages in medical malpractice cases. The Journal noted the national implications of the decisions:

This decision [involving lead paint manufacturers] is the first of its kind in the country and establishes a dangerous precedent. It dispenses with the traditional legal standard for torts—which is to establish actual connections between wrongdoing and injury—and replaces it with a chain of speculation and conjecture, making it all but impossible for a company to exculpate itself. In short, the decision gives defendants every incentive to settle rather than risk a trial, rigging the system in favor of the trial lawyers. There's every reason to believe those same lawyers will try to export this same unfair theory to other states.

The newspaper also noted the political implications of the Supreme Court’s new willingness to overrule legislative decisions. “The dual rulings pose a challenge to Wisconsin's politicians,” noted the Wall Street Journal, “who have essentially been overruled by a four-person judicial legislature.”

This was precisely the point made by the court’s conservative minority. In his dissent, Justice David Prosser, a former speaker of the State Assembly, accused the court’s new majority of arrogating to itself the status of a “super-legislature.” Noting that our form of government “provides for one legislature, not two,” Prosser wrote, “This court is not meant to function as a ‘super-legislature,’ constantly second-guessing the policy choices made by the legislature and governor.”

By basing its decision on the state, rather than the United States Constitution, Prosser noted that the decision could not be appealed to any higher court, thus “effectively destroying the checks and balances in our constitutional system.”

In a series of other cases, the court continued to expand its reach and added to its power, until the unrestrained nature of some of the decision making drew a rebuke from the former justice, whose seat Butler had taken.

“The terms ‘modesty’ and ‘restraint’—the watchwords of today’s judicial mainstream—seem to be missing from the Wisconsin Supreme Court’s current vocabulary,” Judge Diane Sykes said in a 2006 Hallows Lecture at Marquette Law School. “Instead, the court has adopted a more aggressive approach to judging.”

The present Wisconsin Supreme Court is plainly disinclined to defer to the judgment of those elected to represent the people of this state, even though the structure of state government and the court’s precedents require it to do so. The court has lowered the threshold for invalidating statutes by adopting a heightened standard for evaluating their constitutionality. . . . The court has also manifested a cavalier, almost dismissive attitude toward the sources of legal interpretation generally thought to be most authoritative: the text, structure, and history of the constitution and laws, and the court’s own precedents.

But perhaps the greatest departure was the court’s encroachment into the political realm:

The court is quite willing to devise and impose its own solutions to what it perceives to be important public policy problems—civil and criminal—rather than deferring to the political process.

When justices arrogate political policymaking to themselves, they should not be surprised when they are held to the same standards as politicians. Had they behaved more like judges, their campaigns would likely have been judicial in tone. Instead, by acting as super-legislators and super-governors, they transformed elections for the court into the sorts of campaigns associated with heated contests for legislative seats and the governor’s chair. The stakes were certainly no less.

In Wisconsin, as it turned out, the electorate was the only check remaining on the out-of-control court.

Corrupting Elections

Implicit in the calls for an end to elections of justices is the assumption that Butler’s defeat is a sign of the failure of the electorate and the electoral process. But a case can be made that l’affaire Butler is a much stronger example of the dysfunction of the appointment process, at least in Wisconsin.

Butler was appointed to the job after having been explicitly rejected by the voters. Doyle named him to the high court despite and quite possibly in open defiance of the verdict of the electorate in 2000, when Butler lost a race for the seat by a 2-to-1 margin. In effect, Doyle’s appointment (which required no confirmation by any elected or unelected body) overturned the clear results of the election. In an editorial endorsing the Kessler plan, the Journal Sentinel also mentioned “other systems worth considering,” such as the use of judicial commission and “popular referendums on the justice . . . after a certain time on the bench.”[ii] It doesn’t seem to occur to them that Butler’s defeat was essentially just such a referendum.

Supporters of alternatives to elections assume that the appointment process is inherently less political or subject to special interest manipulation than elections. Under Kessler’s plan the governor could appoint justices subject to confirmation by the state Senate. After the first term in office, the justice would again be submitted to the Senate and could be removed if a super-majority of 21 of the 33 senators voted to unseat the justice.

But under the Kessler plan the appointment, confirmation, and review process would be solely and exclusively in the hands of partisan politicians. How is this obviously a less political alternative to non-partisan elections involving actual voters?

What is, however, clear is that under the Kessler plan, Butler would have remained on the court and liberals would have maintained their majority, with every indication of continuing their unconstrained jurisprudence

Maybe They Want Conservative Judges

But “politics” in the abstract doesn’t seem to be the target of the “reformers.” Instead, the push to eliminate judicial election also implicitly acknowledges the conservative slant of the electoral process.

Butler was the first sitting justice to be defeated at the polls in four decades, but the election was hardly an aberration. As Christian Schneider pointed out on the WPRI blog, there is a clear pattern in the last four contested Wisconsin Supreme Court races:

2000: Conservative woman defeats liberal man (Sykes v. Butler)

2003: Conservative woman defeats liberal man (Roggensack v. Brunner)

2007: Conservative woman defeats liberal woman (Ziegler v. Clifford)

2008: Conservative man defeats liberal man (Gableman v. Butler)

“Could it be possible that Wisconsin voters simply prefer conservative justices?” asked Schneider. “Is there even a remote chance that the people who voted wanted their justices to adhere to a strict reading of state law?”

Polls strongly support Schneider’s thesis.

A survey by the Polling Company shortly before the Butler-Gableman election found that a strong majority of Wisconsin voters favored the current system of electing Wisconsin Supreme Court justices in nonpartisan elections rather than allowing the Governor or Legislature to appoint them.

The pollsters also asked voters whether they thought (a) “Judges should interpret and apply the law as it is written and not take into account their own viewpoints and experiences” or (b) “Judges should go beyond interpreting and applying the law and take into  account their own viewpoints and experiences.”

Seventy-seven percent of state voters favored the conservative alternative. Only 20 percent supported the activist alternative.

Those numbers suggest that despite the elitist sneers, the voters knew perfectly well what they were doing when they called a halt to Wisconsin’s runaway high court.