Judicial Restraint vs. Activism: The Phony Issue

Paul's Note: I wrote the following post for publication today. On Sunday, the Wisconsin State Journal published Dee Hall's Who's the 'activist' in Supreme Court race?  

The outcome of Tuesday's election to the high court - pitting Madison attorney Linda Clifford against Washington County Circuit Judge Annette Ziegler - will determine whether the court tilts toward liberal activists or conservative activists. (emphasis added)

A 2006 University of Kentucky study looked at decisions reached by members of the U.S. Supreme Court under former Chief Justice William Rehnquist from 1994 to 2005, when there were no changes on the court. The goal was to determine whether the liberals or conservatives were operating as judicial activists by striking down laws or overturning previous court decisions.

The answer? Both.

As the Wisconsin campaign for the Supreme Court winds down, Annette Ziegler embraces judicial restraint while painting her foe, Linda Clifford, as a judicial activist.

The bottom line is this: the debate between judicial activism and judicial restraint is illogical and contradictory. It is nothing more than a sham designed to criticize decisions a court makes that are not pro-business or may respect the constitutional rights of defendants, mostly street criminals (but some corporate executives as well.)

Let us turn to no less than an authority than Rick Esenberg, Shark and Shepard, who has polished off his white paper, A Court Unbound? The Recent Jurisprudence of the Wisconsin Supreme Court.

In this paper, Esenberg kindly provides us with a definition:

Judicial restraint, for our purposes, is the notion that judges ought to base their decisions upon a source of authority that is outside of themselves and their own notions of the just. ..

...Finally, as Justice Scalia points out, judicial restraint (or, in his parlance, "textualism") is not synonymous with "strict construction." He writes that "[a] text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means."⁴

Curiously, he never provides us with a definition of judicial activism, except by inference;

Judges who seek to exercise restraint will tend to adopt techniques of construction that confine, rather than expand their discretion. They will be less likely to adopt indeterminate meanings for legal terms or to construe them through the use of multi-part "tests" that can, in any given case, justify any results.

While I disagree with much in his paper, I concur with this observation:

Although our recent judicial history may be comprised largely of "activist" decisions advancing what may be seen as the goals of the political left, there is nothing inherently "liberal" or "conservative" in this view of restraint, as our not so distance past demonstrates.³

I am curious as to what the judicial restrainters would say about corporations defined as persons. The most obvious example from the nineteenth century is a series of decisions where it was ruled that corporations were persons. Nowhere in legislation, prior to the 1890's, did the Congress, in any way, declare that persons included non living and breathing entities.

For a more modern example, we need go no further than the aforementioned hypocrite, Anthony Scalia, who penned the decision in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). Scalia decided that the plain meaning of the word 'taking' meant more than 'taking.' That in fact, if government was to rezone property that resulted in diminishing the value of what might be constructed on it, that was a taking. It was not troubling to Scalia that he had violated one hundered years of precedent or that he gave new meaning to the word 'taking.' Or that if he was to determine that if government we to compensate an owner by a rezoning that diminished the value of the land, that perhaps then owners would pay governments when their land increased from a rezoning or change in regulations.

Comments

[jim guilfoil]

Following the absurdity that corporations are 'persons' for legal purposes, does it follow that corporations have should all the privileges of speech under the first amendment. Corporate speech is a far fetched analogy to personal speech. Corporate speech is intended, for the most part, to deceive the consumer into believing in the 'free market' and 'individual choice'. Lying consists in an expression intended to deceive. The court is not just 'activist' it is 'proactivist'. I hate the term, but in this case it fits.

[Anonymous]

It's all part of their strategy. Confuse people with their B.S. about restraint so people are not paying attention to Ziegler's ethics scandal.

Post election they want to focus peoples attention on campaign reform so people aren't focused on what the judicial commission should or is doing about Ziegler.

I've read that Senator Grothman from West Bend is on an oversight committee of the judicial commission and One Wisconsin Now has written that West Bend's former mayor is the Chairman of the judicial commission. It looks to me that they feel they'll be able to torpedo the whole thing. Justice, hey!
It looks like they're further along in their plans then thought.

[Gerardo]

"Antonin" Scalia.

[G.Hess]

Note date:
FREE SPEECH -- SELLING IT TO THE HIGHEST BIDDER

Date: Thursday, November 4, 1999
Byline: George Hesselberg

Every morning, stretch. It's good for you. Here's a stretch:

The Wisconsin Manufacturers and Commerce persists in proclaiming its ``free speech rights.''

As recently as Tuesday the tax-break lobby was yelping about its ``free speech rights.'' The U.S. Supreme Court refused to consider a dispute between the WMC, which tried to influence the 1996 state elections by buying advertising that transparently trashed certain candidates, and the state.

The WMC was described exactly a year ago in this column as a lobbying organization that ``periodically engages in influencing the political and law-making processes through means of pressure applied by signing a check.''

The focus a year ago was that the WMC had demanded that the media, in describing the WMC's political advertising, use this:

``WMC's issue ads are constitutionally protected under the First Amendment and not subject to government regulation, including disclosing contributors and expenditures.''

The suggestion was that the WMC, since it is interested in the truth, should rewrite that to say: ``WMC's issue ads are financed by contributors who do not want the public to know who is paying for attack ads because WMC members might lose business if consumers knew who paid for these sleazy ads. Instead, in our own cowardly way, the WMC chooses to whine to the media and to hide behind the debatable notion that constitutionally protected rights for individuals can be extended to corporations.''

In the wake of the Supreme Court's non-action, the WMC was at it again, pumping itself up.

They will nibble this one to death, a word here, a word there. Doing the honorable thing must never have occurred to the WMC. Just answer the question: Who are you and what do you want? Instead, the WMC continues to take the coward's way out, hiding behind anonymity and the shadowy financial sources that in this argument, assure it