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Thursday, March 09, 2006

Courts - 7th Circuit's Judge Diane S. Sykes speaks on judicial activism in the Wisconsin Supreme Court

The Milwaukee Journal-Sentinel today has an opinion piece by 7th Circuit U.S. Court of Appeals Judge Diane Sykes, excerpted from the Hallows Lecture she delivered Tuesday, March 7, 2006 at Marquette University Law School.

Her focus is the Wisconsin Supreme Court, on which she served for five years, and more specifically, on:

a dramatic shift in the court's jurisprudence, departing from some familiar and long-accepted principles that normally operate as constraints on the court's use of its power: the presumption that statutes are constitutional, judicial deference to legislative policy choices, respect for precedent and authoritative sources of legal interpretation and the prudential institutional caution that counsels against imposing broadbrush judicial solutions to difficult social problems.

I will concede, as I must, that a court of last resort has the power to throw off these constraints, revise the rules of decision and set the law on a new course. But when it does so, we ought to sit up and take notice. . . .

The Wisconsin Supreme Court is quite vigorously asserting itself against the other branches of state government. When the court decides cases on the basis of the state constitution, its power is at its peak, because legislative correction is impossible and the constitution is difficult to amend. . . .

The terms "modesty" and "restraint"- the watchwords of today's judicial mainstream - seem to be missing from the Wisconsin Supreme Court's current vocabulary. 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 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.

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.

The entire, 26-page paper, “Reflections on the Wisconsin Supreme Court,” is available here.

[Thanks to How Appealing for the pointer.]

Posted by Marcia Oddi on March 9, 2006 12:33 PM
Posted to Courts in general