Judicial Veto: The Ultimate Disenfranchisement

More than two-hundred years ago, Alexander Hamilton warned of the danger associated with an activist judiciary attempting to substitute its judgment for that of the Legislature.

In The Federalist No. 78, Hamilton echoed Montesquieu’s belief that “there is no liberty, if the power of judging be not separated from the legislative and executive powers,” and articulated the proper role of courts as follows:

“The courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body.”

Hamilton’s concerns about activist courts and their threat to liberty would prove prophetic.

Today we are witnessing what could only be described as an ongoing judicial veto of the reforms enacted by the Legislature and Governor Scott Walker.

The collective voices of millions of Wisconsinites who exercised their right to vote to elect Senators, Assemblymen and the Governor are being invalidated by a handful of activist judges in Dane County who simply do not agree with the reform agenda. It is a massive-scale disenfranchisement perpetrated by loyal foot soldiers to the liberal cause.

The big question is whether the Supreme Court will let them get away with it.

The Wisconsin Supreme Court currently has a 4-3 traditionalist majority, meaning they typically uphold the rule of law as the Legislature articulated it – without attempting to rewrite laws from the bench.

Justice Pat Roggensack is a leading voice on the Court’s traditionalist wing, having received the highest rating for judicial restraint by the Wisconsin Civil Justice Council. As such, she is likely to hold the misguided decisions of activist judges accountable to the law.

Without Justice Roggensack on the Supreme Court, the effort to implement a judicial veto of Governor Walker’s agenda is likely to succeed.

The election on April 2 represents the best opportunity for labor unions and others to flip the Court to a 4-3 activist majority, and thereby overturn the legislative will of voters.

Activists on the Court, led by Chief Justice Shirley Abrahamson, have a history of ignoring the Legislature’s prerogative, and rewriting laws to fit their own personal agenda.

In 2005, the activist wing of the Court overturned a number of laws they simply disagreed with, including legislatively-enacted limits on punitive damages and limits on noneconomic damages in medical malpractice cases.

An activist majority on the Court could do considerable damage to key reforms whose status remains in limbo as legal challenges are pending.

Act 10 Collective Bargaining Reforms

The signature reform for Governor Walker that propelled him into the national spotlight, the public employee collective bargaining, remains squarely in the union’s bull’s-eye. These reforms transformed public employee benefits, helped balance a $3 billion deficit without raising taxes, and provided economic liberty for thousands of public employees who preferred not to pay union dues.

Although the law was upheld as constitutional in its entirety in federal court, an activist Dane County judge ruled key portions of the law were unconstitutional last year in state court. A judicial review of Madison Teachers, Inc. v. Scott Walker is likely to reach the Wisconsin Supreme Court in the near future. Justice Roggensack’s opponent, law professor Ed Fallone, has been highly critical of these reforms.

Voter ID Requirements

The Legislature passed a law last session requiring voters to present picture identification when voting as a means to prevent voter fraud, and ensure the integrity of our elections and the “one person-one vote” principle. Despite voter ID laws being upheld as constitutional in other state and by the U.S. Supreme Court, an activist Dane County judge largely overturned this law in League of Women Voters Education Network, Inc. v. Scott Walker. Similarly, and activist Supreme Court could permanently block this important good-government reform.

Regulatory Reforms

WMC fought hard to enact comprehensive regulatory reforms last session, which includes requirements for cost/benefit analyses of all new rules, and a requirement that the Governor must approve or veto new rules. Last year, a Dane County judge overturned a portion of these reforms in Peggy Z. Coyne, et al v. Scott Walker. It would be unfortunate if an activist Supreme Court chose to further erode these reforms, and wipeout important checks and balances on the authority of state agencies to regulate.

The cases above are a few examples of the havoc an activist Supreme Court could wreak on the laws duly elected by our Legislature. Going forward, other important reforms like iron mining laws could face a similar fate.

The constitutional Framers understood the importance of separation of powers, and they correctly reserved lawmaking for the Legislative branch of government – not the judicial branch. Justice Roggensack has demonstrated her adherence to this important tenet of our system of governance.

April 2 will provide voters with an opportunity to reelect Justice Roggensack, reaffirm the rule of law, and push back against disenfranchisement by fiat of activist judges.

Judicial restraint is on the ballot.

POTENTIAL CALLOUTS

Without Justice Roggensack on the Supreme Court, the effort to implement a judicial veto of Governor Walker’s agenda is likely to succeed.

An activist majority on the Court could do considerable damage to key reforms whose status remains in limbo as legal challenges are pending.

The constitutional Framers understood the importance of separation of powers, and they correctly reserved lawmaking for the Legislative branch of government – not the judicial branch.

By Scott Manley, WMC Vice President of Government Relations