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The Proper Role of the Judiciary

By the Honorable Rebecca G. Bradley

When evaluating candidates for judicial office, voters may find useful information to be somewhat lacking. Unlike candidates for partisan offices, judicial candidates must refrain from taking positions on issues that may come before the court. Instead, judicial campaigns properly focus on a candidate’s ability and willingness to uphold and apply the law regardless of personal views.

While most judicial candidates highlight their impartiality, independence and adherence to the rule of law, in reality jurists approach their work with one of two distinct judicial philosophies: one is outcome-neutral and guides judges to apply the law as it is written, informed by principles such as judicial restraint and respect for the separation of powers among the three branches of government; the other is results-oriented and attempts to work a form of “justice” informed largely by the individual judge’s personal beliefs. Choosing among candidates espousing these competing philosophies can have stark consequences for the citizens of Wisconsin.

The people of Wisconsin are best served by judges who understand and embrace their duty to state what the law is and not what they prefer it to be. In practice, this means objectively interpreting the law according to what the legislature wrote, regardless of outcome. While judges appropriately defer to legislative policy choices, they do provide an important check on what the majority desires by striking down laws that violate individual rights guaranteed by the federal and state Constitutions. Constitutionally valid laws should be applied as written, without judicial revision or rejection.

In contrast, some judges adopt a philosophy of imposing what they believe is right to effect social or political change, regardless of what the law says. The obvious danger of employing such a philosophy is the inherent subjectivity in determining what is “right,” as personal conceptions of right and wrong can differ widely among different people. Adopting such a philosophy leads the judiciary to invade the province of the legislature by creating laws rather than applying them. This approach results in a few judges – and sometimes just one judge – making a decision that cannot be readily corrected through democratic processes.

This is not what the founders of our country or our state envisioned. Instead, the representatives of the people, elected through democratic processes, are responsible for creating the laws, restrained by the Constitution from infringing protected individual rights and liberties. If the people do not like the intended or unintended consequences of constitutionally valid laws, they can employ the political process to change them. It is not the role of the judiciary to set aside such results by fiat.

In Federalist No. 78, Alexander Hamilton succinctly summarized the role of the judiciary:

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.

In other words, the duty of the judge is to say what the law is, not what the judge may wish it to be. How does a judge determine what the law is? Again, Hamilton instructs us:

To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them…

The rules to which Hamilton refers include those gleaned from examining the text, structure and history of laws, interpreted as their drafters wrote them. Precedents refer to the body of case law. Judges who are properly restrained by an understanding of their role to interpret and apply the law will adhere to well-established precedent unless the Constitution commands otherwise.

America was founded on the principle that Constitutional laws enacted by the people’s representatives in the legislative branch of government are to be upheld by the judicial branch, not second-guessed. Laws are appropriately subject to judicial review, not a judicial veto. The judiciary should defer to legislative policy choices, not impose their own.

In Federalist No. 17, Hamilton recognized State government, distinct from the federal government, as “being the immediate and visible guardian of life and property…” Accordingly, the importance of the State courts in which such power is entrusted – by the people – cannot be overstated. When judges in Wisconsin take office, they swear to support the Constitution of the United States and the Constitution of the State of Wisconsin. In exercising this duty, judges should respect the constitutionally prescribed roles and powers of the co-equal legislative and executive branches of government.

Judge Rebecca Bradley was recently appointed as a Wisconsin Court of Appeals Judge by Gov. Scott Walker. Previously she served as a Milwaukee County Circuit Court Judge.




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