Judicial Philosophy Matters

By Scott Manley
Senior Vice President of Government Relations
Wisconsin Manufacturers & Commerce

In Wisconsin, and throughout the U.S., liberal special interests are increasingly utilizing appellate courts to advance policy objectives they cannot achieve by working through the legislative process.

Republicans currently control 69 of 99 state legislative bodies, 31 of 50 governorships, and hold both houses of the U.S. Congress. As a result, labor unions, radical environmental groups and other left-wing organizations have hit major roadblocks in state and federal legislative chambers.

These groups have therefore turned to the courts as their last hope to impose a liberal agenda.

We’ve seen this strategy at work right here in Wisconsin. Left-of-center groups have attempted to invalidate numerous reforms, including Act 10, voter ID, regulatory reform and Right to Work.

The best antidote against these types of collateral legal attacks on our reform agenda is a Wisconsin Supreme Court that adheres to the rule of law and reflects a judicial philosophy consistent with the originalist theory of interpretation.

The late Justice Antonin Scalia saw the dangers of judicial activism perhaps better than anyone. He often criticized courts for taking on what he termed a “Mr. Fix-it Mentality” where justices incorrectly viewed their mission to “Make Everything Come Out Right” instead of interpreting the law. He scolded his fellow justices for their “interpretive jiggery-pokery” in the King v. Burwell Obamacare case, noting that context “is a tool for understanding the terms of the law, not an excuse for rewriting them.”

In that same case, he noted the U.S. Constitution “made Congress, not this Court, responsible for both making laws and mending them. This Court holds only the judicial power – the power to pronounce the law as Congress has enacted it… Our task is to apply the text, not to improve upon it.”

In his dissent in Hamdi v. Rumsfeld, Scalia warned the judiciary “saps the vitality of government by the people” and weakens the legislative branch when courts exceed their modest role of statutory interpretation.

Indeed, our democratic process and the Legislative Branch itself are trivialized when courts choose to defy the will of voters and overturn laws simply because a handful of judges happen to disagree with them.

Yet this is precisely what is at stake in Wisconsin’s Supreme Court election on April 5.

On one end of the spectrum is Justice Rebecca Bradley, who has pledged to exercise judicial restraint and adhere to an originalist philosophy.

On the far opposite end is Judge JoAnne Kloppenburg who, in so many words, pledged to repeal Gov. Walker’s collective bargaining reforms from the bench when she ran unsuccessfully five years ago.

The differences between these two candidates couldn’t be starker.

Voters will have the power to elect a Wisconsin Supreme Court Justice who will call legal “balls and strikes” and who views the judiciary as having a very limited role in reviewing and interpreting the law. Or, voters can choose a justice who will happily “change the rules of the game” by using the judiciary to twist and contort the law to conform to her own political views and agenda.

Even after his untimely death, Justice Scalia continues to remind us through his brilliant writings that the proper role of courts is not to remake laws or substitute the views of judges for those of lawmakers. He wrote in one of his last great dissents that “ours is a government of laws and not of men. That means we are governed by the terms of our laws, not by the un-enacted will of our lawmakers.”

Judicial philosophy matters. We have an opportunity on April 5 to ensure we are governed by laws, not the whim of judicial activism.

Follow Scott on Twitter @ManleyWMC

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This article appears in the April 2016 edition of the WMC Business Voice magazine.

Founded in 1911, Wisconsin Manufacturers & Commerce (WMC) is the state’s chamber of commerce and leading business association representing 3,800 employers of all sizes and from all sectors of the economy.