In a series of landmark decisions [in the past year], the court:
• Rewrote the rational basis test for evaluating challenges to state statutes under the Wisconsin Constitution, striking down the statutory limit on non-economic damages in medical malpractice cases;
• Eliminated the individual causation requirement for tort liability in lawsuits against manufacturers of lead-paint pigment, expanding "risk contribution" theory, a form of collective industry liability;
• Expanded the scope of the exclusionary rule under the state constitution to require suppression of physical evidence obtained as a result of law enforcement's failure to administer Miranda warnings;
• Declared a common police identification procedure inherently suggestive and the resulting identification evidence generally inadmissible in criminal prosecutions under the state constitution's due process clause;
• Invoked the court's supervisory authority over the state court system to impose a new rule on law enforcement that all juvenile custodial interrogations be electronically recorded....
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.
March 9, 2006
"The Wisconsin Supreme Court is quite vigorously asserting itself against the other branches of state government."
The Milwaukee Journal Sentinel has excerpts from a speech by 7th Circuit Judge Diane Sykes, complaining about the Wisconsin Supreme Court (where she was once a justice):
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The Wisconsin Supreme Court is legislating laws, pure and simple. Such legislating is unconstitutional under the Wisconsin constitution.
They all should be impeached.
Ann, I know you think Ms. Sykes would be an interesting candidate for US Supreme Court -- I wonder if her giving speeches like this is a way of keeping her name 'out there' so fellow conservatives see that she's fighting the fight. I confess I don't normally follow the speechmaking of Judges -- is it a common occurrence? I don't recall much press on past Alito or Roberts speeches during their respective nominations.
Of the 5 in the list you highlight, I'd say the last is the least objectionable to me. I should think all interrogations would be electronically recorded these days!
Question: Are the Wisconsin Supreme Court justices elected or appointed? If they are elected, take it to the voters -- if they care about "activist judges" they'll vote'em out.
From the wicourts.gov website:
The Supreme Court is composed of seven justices, elected to 10-year terms in statewide, non-partisan April elections. Vacancies are filled by gubernatorial appointment and the appointee is required to stand for election to a full 10-year term the following spring. The Wisconsin Constitution limits justices to running one at a time.
I don't recall a justice failing in a bid for re-election. Judge Crooks' (almost a good a moniker as Cardinal Sin) term ends this year, but I've heard nothing about a run for the seat. They are pretty low-key.
I would note that one of the traditional functions of the state law schools -- particularly, of their law reviews -- used to be to comment critically on the decisions coming out of their respective state courts. (Private law schools did it too: e.g., Harvard did it for Massachusetts.)
It's probably been ages since the Wisconsin Law Review has published anything other than a student note or comment relating to Wisconsin court cases. (Likewise Harvard, Michigan, Texas, etc.)
Well, the New York Court of Appeals Chief Judge, Judith Kaye, said that constitutional interpretation was a dialogue between the state's highest court and its legislature. (I would translate this into Thucydidean terms by saying a dialogue between the few and the many.) I have no reason to doubt that Wisconsin Supreme Court reflects the views of the elite--although I confess that I have never discussed theories of tort liability with any of my fellow members of the elite--and that therefore the Wisconsin Supreme Court is doing its job. Maybe too aggressively, however, which might be Prof. Althouse's point. Judge Kaye said "dialogue."
Sean: "Maybe too aggressively, however, which might be Prof. Althouse's point."
Did I make a point?
That's a heck of a coincidence! I have blogged several times recently in support of a Sykes nomination, including (hence the coincidence) just today!
Just to add to this discussion - I think it's really quite important to read the full text of Sykes' remarks, not just the op/ed. When I read the op/ed, I thought it seemed disjointed and underreasoned, which makes a lot of sense when you read the real thing and realize that a 20 page speech has been jammed into a half-page newspaper column.
"in any event, assuming all it takes is a disregard of rights (which ignores the previous case law, legislative history, and the Restatement)"
By which one hopes you mean, the history of the legislature's enactments, rather than the legislative history of a given act...
The most interesting aspect of the Wisconsin Supreme Court's recent jurisprudence is its interpretation of certain clauses in the constitution granting broader rights than the companion federal constitution.
Also, someone wrote that Justices Roggensack and Crooks were Democratic appointments and/or indicated that they are Democrats - incorrect.
I cannot sleep well.
"The most interesting aspect of the Wisconsin Supreme Court's recent jurisprudence is its interpretation of certain clauses in the constitution granting broader rights than the companion federal constitution."
Well, I don't have a problem with that, per se, and I'm not sure that Sykes is saying that she does, either (see speech at p.17). Indeed, quite the contrary, I fully encourage the dawning realization that the Federal Constitution is not a Mr-Fix-It which absolves the people of writing and maintaining appropriate Constitutions for their states. But what I think Sykes is objecting to is the sudden, unprecedented, largely unexplained, and baldly results-oriented deviance from past practise:
"Before Knapp, the Wisconsin Supreme Court had repeatedly held that in the absence of a meaningful difference in language, intent, or history, the state constitution’s Declaration of Rights should be interpreted in conformity with the United States Supreme Court’s interpretation of parallel provisions in the Bill of Rights. The language of the state constitutional right against compulsory self-incrimination is virtually identical to the Self-Incrimination Clause of the Fifth Amendment; the court had declined many previous invitations to interpret the state right more expansively than its federal counterpart.
Not this time. In round two of Knapp, the court accepted the defendant’s invitation to—as the court put it—“utilize . . . the Wisconsin Constitution to arrive at the same conclusion as in Knapp I.”19 This language is revealing for its pure, unvarnished result orientation. The court’s decision rests not on the language or history of the state constitution’s self-incrimination clause but on the court’s own policy judgment flowing from an expansive view of the deterrence rationale of the exclusionary rule."
(speech at 15-16)
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