When judges are in the headlines for matters other than deciding the cases before them, it is usually not a good thing.
Unfortunately, much of the news about Wisconsin’s judiciary the past few years has been of a political character. The Wisconsin Supreme Court has drawn attention for judicial campaigns and their financing, internal discipline and when a justice should recuse herself or himself from a case. A lawsuit recently challenged Wisconsin’s code of judicial conduct on whether judges can join political parties, personally raise money and endorse partisan political candidates.
Wisconsin is not the only state with a high court in the headlines other than for its decisions. Michigan’s Supreme Court has undergone partisan fights recently, and the U.S. Supreme Court held that a justice of the West Virginia Supreme Court had to recuse himself from a case involving a company whose president spent $3 million to re-elect the justice while the company’s appeal was pending.
A robust debate about a branch of government is always welcome. But the discussion surrounding Wisconsin’s courts sometimes assumes that law is just another name for politics. And the more politics dominates the discussion, the more the state’s judiciary may be paying a price.
The political drumbeat around courts can sap their strength. Without a constant reminder of the judiciary’s proper role, the distorted view that “law is just another name for politics” flourishes.
The role of courts in adjudicating cases is different from politics.
Although the judiciary is elected in Wisconsin, it was never intended to directly carry out the wishes of the voters. Sometimes the judicial role means court decisions run counter to current public opinion.
Independent, impartial decision-making is the cornerstone of judicial branch activities, which include the power of judicial review. Wisconsin courts can invalidate a state law that violates a constitutional provision or that was not enacted according to the process outlined in the constitution.
A corollary to this duty of judicial review is the obligation of courts to act differently from the more political government branches. An important way to distinguish adjudication from politics is for courts to adopt neutral principles in the cases before them.
Neutral principles consist of two elements: neutral content and equal applicability. A decision rests on neutral principles for reasons transcending the immediate result of the case. That decision then applies to all parties equally.
Neutrality underlies much constitutional doctrine. For example, procedural due process guarantees a hearing before a neutral tribunal, and equal protection of the law demands race- and gender-neutrality.
Adopting neutral principles is a way to seek the objectivity that should distinguish law as a discipline from politics. Neutrality is a guide for the courts, both in choosing the law and applying the law.
The idea that law should be based on neutral principles provides a powerful rebuttal to the idea, express or implied, that law is just another name for politics.
The strength of a court is as a legal institution, not as a political one. Viewing judges as quasi-legislators with predictable voting patterns obscures the proper role of a court to use the tools of the judicial workshop – a law’s text, structure, constitutional history and precedent – to interpret and apply the law.
A constant reminder of the proper role of the judiciary – to be even-handed, nonpartisan legal technicians interpreting and applying, not making, the law – provides an important touchstone for Wisconsin’s courts. It does the same for discussion about them. There is a distinction between healthy debate and a court and its work seen in terms of partisan politics.
A court’s authority encompasses power and neutrality. Lady Justice may hold a sword, but her scales and blindfold are just as important to who she is.