Recent decisions by a judge in Wisconsin have greatly affected the April 7th election in response to the coronavirus crisis. These starkly different decisions illustrate two very different ways of approaching the role of the judicial branch.
The decisions show the difference between two competing judicial philosophies—a view that judges can impose their own opinion of what the law should be, and the view that judges should behave in a restrained manner and just interpret the law as written.
U.S. Supreme Court Justice Neil Gorsuch’s book, “A Republic, If You Can Keep It” clearly illustrates the view of judicial restraint, a view that is antithetical to the progressive legal community’s belief that judges should broaden their own job description when they disagree with certain laws.
It has become increasingly popular for activists to view judges as champions and deliverers of justice as they define it, and some over-reaching judges embrace this new, more powerful role. The celebrity status of liberal Justice Ruth Bader Ginsburg is an example of how such an embrace of newfound power can be rewarded in the popular culture.
As if he were placed on the U.S. Supreme Court as a mirror image of that mindset is Justice Gorsuch, who argues that the role of a judge should be, and is constitutionally prescribed to be, more circumspect and — well, boring. Justice Gorsuch believes that judges should use sound judgment to interpret laws rather than enforce their preferred brands of justice in their decision making process. This was the intention of those who wrote the United States Constitution.
“From their own experience and understanding of history, the Framers knew that to prevent the rule of law from becoming the rule of men, more is required than a constitution full of nice promises. What’s needed is a constitution that counteracts the instinct to seek and misuse power,” he wrote.
Alexander Hamilton makes that point in Federalist Paper 78, in which he essentially writes that the judicial branch should be the most boring and weakest of the branches because it had “no influence over either the sword or the purse…It may truly be said to have neither FORCE nor WILL, but merely judgment.”
In other words, the judicial branch is not the heart or soul of our government, but the frontal lobe of our collective brain, the higher function that provides the problem solving and judgment that moderates the impulses of the other branches.
I agree with Hamilton and the Framers. Big changes should come from democratically elected legislative bodies, not judges with long-term or lifetime appointments. A judge is responsible for faithfully interpreting the law, and the only departure from the text of the law is a determination that the law conflicts with a higher law—the state or federal constitution.
Judicial elections in Wisconsin are non-partisan, but it’s no secret that there is typically a “Democrat” friendly candidate and a “Republican” friendly candidate. This association naturally extends to labeling the candidates as “anti-business” or “pro-business,” “anti-gun” or “pro-gun,” and so on. But in reality that should not be the choice.
A judge should not be anti- or pro-anything. Judges who share the philosophy of Justice Gorsuch will rule against their own personal policy preferences in order to uphold the law and constitution, whether it pleases them or not.
Two concepts Gorsuch touches on repeatedly in his book are the concepts of textualism and originalism. Textualism is the interpreting of law exactly as the law is written, as opposed to a judge who makes his or her own interpretation of what the legislature’s intent was when the law was passed. This is critical now more than ever.
Our current coronavirus crisis has led one federal judge to throw out a state law that limits voter registration just weeks prior to the upcoming election. This law was passed by a democratically elected Assembly, Senate, and signed into law by an elected governor.
Yet, this single Obama-era judge decided he doesn’t like the law as it was written by the legislature. He has directed that it should not be enforced by the executive branch and clerks who do not comply with this judge’s prerogative, be held in contempt of court.
In short, in this one recent example, a judge absorbed and exercised the power of all three branches of government. This is a slap in the face to the framers’ most important objective—to separate the powers of government and prevent autocratic rule.
In a sharply different decision, the same federal judge issued another ruling on Thursday this week regarding the upcoming election, and in doing so articulated the Constitution and the Framers’ intent—the very principles Justice Gorsuch articulates in his book. U.S. Judge for the Western District of Wisconsin, William Conley, said he cannot act as a ‘super department of health for the state of Wisconsin’ and stop the election. State government must make that change, he believes—not the courts.
Conley said it may be bad public policy to move ahead with the election in light of the growing pandemic, but his decision was that he cannot move the election’s date.
“Is it my place as a federal judge to say, nope, Wisconsin doesn’t get to have an election at all?” This question that Conley openly asked himself is the precise sort of question judges should ask themselves all the time.
In four days, Wisconsin will have the opportunity to uphold the Constitutional principles so clearly articulated in Justice Gorsuch’s great book by re-electing Justice Daniel Kelly to the Wisconsin Supreme Court, Paul Bugenhagen to the Wisconsin Court of Appeals, and other constitutionally oriented judges on the ballot.
This is not some sleepy Spring election. This is a battle in the midst of a crisis that liberal judges might continue to use to consolidate the powers of the three branches of government into the hands of self-anointed autocrats.
Justice Gorsuch may argue for a more boring judiciary, but his book is anything but boring. His book could not have had a better title—“A Republic: If You Can Keep It.”
Our collective answer will be “yes” if we can keep Justice Daniel Kelly on the Wisconsin Supreme Court and similarly minded judges on the bench throughout Wisconsin.
This column has been corrected to reflect that it was the same judge, Judge William Conley, who issued both rulings regarding Wisconsin’s April 7th election.
RightBooks with Dale Kooyenga is a monthly feature at RightWisconsin. Dale Kooyenga (R-Brookfield) represents Wisconsin’s 5th Senate District in the state legislature. He is also a Certified Public Accountant and an Army Reserve officer.
