Friday, March 16, 2007

"Judicial Activism" Unvarnished

Following the Shark's paper on the question of "judicial activism," (referenced and linked in the post beneath this one,) he posts today a clearly "activist" statement made by a "non-partisan" candidate for the Wisconsin Supreme Court.

"Three hundred and fifty thousand dollars is an insufficient amount in this day and age,”she said. “Whether the cap was categorically unconstitutional or arbitrarily too low, I think the result was correct.”,”she said.

What she said was that in her (not-so-humble) opinion, the caps, which were legislated by the Legislature, should have been re-legislated by....(ta-da) the Court.

Esenberg comments:

These malpractice caps were enacted by the people's democratically chosen representatives. Unless they are, for some reason, "categorically unconstitutional" then the court has no business setting them aside - whether or not Linda Clifford or a majority of justices think they are "too low." While our state's constitution does place certain limits on the legislature, the policy preferences of a majority of justices on the state's supreme court are not among them.

It so happens that I decried the stubborn and politicized refusal of the Assembly Majority Leader to accept a compromise cap-limit (IIRC, $750K). He's no longer in any public office, perhaps because of his stances...

But stubborn, politicized Legislators are not an excuse for abrogation of Legislative prerogative by a Court which "feels like it" one morning.

Now we have the possibility that Ms. Clifford will win a seat on the Court and take her electoral victory as a mandate to Legislate rather than Adjudicate.

Egads. Or, more elegantly:

Some of you might wonder why we should care. Isn't this just geeky lawyer stuff? If the result is right, why worry about whether it was legitimate? The answer goes to the very foundation of democracy. Judges get to set aside the actions of our elected officials only when those actions violate some constitutional limitation on what election officials are permitted to do - not because judicial officers believe that "in this day and age" the legislature has chosen poorly or society "needs" something else.

1 comment:

Billiam said...

But, but, they KNOW what's best for us even if we don't! Right?