A recent Super Id post observes that — hang on to your René Magritte bowler hats — the conservative "think tank" Wisconsin Policy Research Institute completely misrepresented a decision of the State Supreme Court. Shocking, I know.
Some character called Deb Jordahl, writes Super Id, "is extremely mistaken in her facts" in assessing a recent decision of the court, Stuart v. Weisflog.
More troubling is her citation to Justice Roggensack's dissent, which would have effectively invalidated the legislature's home improvement practice act by applying the judicially created created economic loss doctrine. That's the real judicial activism in Stuart.The puppet in question being, of course, Mike Gableman who, while squeaking out a 51-49 electoral win among a whopping 19% of Wisconsin's registered voters, nevertheless managed to lose his home field, Ashland County, and he toils yet until through the end of July, "presiding over" thousands of uncontested traffic tickets.
But when your mission is to hack apart a competent judge, the facts do not even matter. Congrats WMC, you won your puppet, now can you live with him?
For Super Id, "judicial activism" better describes Justice Roggensack's proposed course of action, which is to supplant duly enacted legislation with judge-made rules. Compare that more definitively empirical approach with Marquette Law professor Rick Esenberg's recent shining example of "judicial activism."
Last week in a case called Baze v. Rees, the United States Supreme Court upheld the constitutionality of the three-drug procedure that several States use to commit premeditated, intentional homicide on selected American citizens.
Justice John Paul Stevens, concurring in the majority's decision to affirm the the lethal injection protocol, wrote separately to discuss the controversial future of the practice among the States and citing the conservative former Justice Byron White's own personal observations on the death penalty itself.
Prof. Esenberg calls this "judicial activism," even though Justice Stevens joined in the judgment of the Court to continue the practice of capital punishment.
Talk about grasping for straws and strawmen. Perhaps Esenberg was inspired by Justice Antonin Scalia's own concurring opinion, written expressly to criticize Justice White's view (via Justice Stevens) that capital punishment, as a general matter of penology, makes but "marginal contributions to any discernible social or public purposes."
Scalia doesn't care for this observation because he thinks social or public purposes are better discerned by the legislatures of the States. Ultimately, Scalia's objection is based in a differing interpretation of the Constitution's Eighth Amendment, which bans the infliction of cruel and unusual punishments. Scalia, like Prof. Esenberg, never mentions that Stevens joined the judgment of the Court, in holding that the three-drug protocol passes Eighth Amendment muster.
And Scalia has never relied on his own personal views in a Supreme Court opinion? Give me a large break and supersize it.
Scalia at least allows that the death penalty's value is "eminently debatable and the subject of deeply, indeed passionately held, views." He just doesn't like Justice Stevens expressing them or, at least, echoing those of Justice White. And this is "judicial activism," according to Prof. Esenberg, despite Stevens joining the six other Justices who voted to affirm the practice of lethal injection as currently practiced. Anything to slam a so-called "liberal judge," apparently, no matter how tenuous to the point of non-existence.
Meanwhile, closer to home, yet more absurdity proceeds from the disingenuous observations of another conservative "think tank" genius, this time hailing from Chicago's Heartland Institute, in the person of one Maureen Martin and a bit of partisan gibberish published the other day in the Wisconsin State Journal.
Referring to the recent State Supreme Court election as "a stellar example of democracy in action" and proof positive "that Wisconsinites care about judicial rulings," Martin goes on to wail predictably and tediously about "liberal elitists."
What Martin doesn't tell you is that only 19% of registered voters cared to participate in this stellar example of democracy and, more importantly, the rulings Wisconsinites supposedly do care about were portrayed by Mike Gableman and his enablers and supporters almost entirely by lying about them.
I wonder who's paying Maureen Martin to fabricate this transparently partisan rubbish, and why the Wisconsin State Journal is publishing it (Chicago, if I'm not mistaken, is in Illinois). Those are not unreasonable questions, because the Heartland Institute is in the business of, for example, denying the health effects of second-hand smoke on behalf of generous stipends gotten from Philip Morris USA, Inc. and lobbying for the oil industry thanks to nearly a million Exxon dollars received over the last ten years.
Of course that's not reflective of "elitism" at all, that's jes' plain folks conservative Republican grass roots populism. Salt of the earth.
How singularly unsurprising that another paid corporate shill would support the empty-suit candidacy of Mike Gableman. Corporate shills were Mike Gableman's biggest supporters throughout the campaign and corporate shills were largely responsible for lying to Wisconsin voters about sitting Justice Louis Butler's record, going so far even to refer to the U.S. Constitution as a "needless technicality."
But, yeah, a stellar example of democracy in action. Right.
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