January 18, 2008

Treading on Louis Butler

Daniel Suhr, the author of the anti-Louis Butler "white paper" discussed here and here (and elsewhere) has responded to some of the criticisms over the manner in which he'd portrayed Butler's opinions in a number of Wisconsin Supreme Court cases.

While it's a response, I can't say it's much of a defense.

Of the two cases discussed at this here blog, Suhr says of the first, State v. Knapp: "Prof. Esenberg has already dispatched the criticism of my characterizations of Knapp ... quite effectively."

He has? That's news to me. Among Esenberg's remarks were the following: "IT's criticism is not ... just flatly wrong." (Thanks, I think.) "He wants to say that the federal rule was not crystal clear and that is certainly so." "IT correctly observes [that Patane] had no majority opinion."

Esenberg's only "dispatch of criticism" (if you can call it that) was to reiterate that the constitutional provision the Knapp majority ultimately based its own opinion on was not the Fifth Amendment itself, but its practically identical corollary in the Wisconsin constitution, Art. I, Sec. 8: "No person ... may be compelled in any criminal case to be a witness against himself or herself." (The Fifth Amendment reads, "No person ... shall be compelled in any criminal case to be a witness against himself." I'll save the "may vs. shall" linguistic perturbations for another time.)

However, this is no defense of Suhr's claim that Butler and his colleagues "set aside" the U.S. Supreme Court's interpretation of the Self-Incrimination Clause. As I said, Butler discussed it in considerable detail. And, as Esenberg confirms, it isn't all that clear anyway. Moreover, Suhr describes the result in Knapp as the product of Butler's "arrogance," and as a "failure to defer" to the U.S. Supreme Court. Where's the defense of that hyperbole?

As Esenberg himself points out (and even cites another SCOTUS case in support of the proposition), there is no such requirement of "deference" to SCOTUS under the circumstances. Personally, my own civil libertarian inclinations put me at a loss to explain what's so objectionable about a State court undertaking a slightly more expansive reading of the freaking Bill of Rights than the U.S. Supreme Court and then to have that reading characterized as "arrogance." That is the statement that requires a substantive defense, if you ask me.

Furthermore, from a broader ideological perspective, I'm puzzled as to how conservative fanboyz of the Federalist Society can, consistent with their other views of federalism, decry an individual State's move to insulate an interpretation of its own constitution from federal review (read: federal interference). A move, as Esenberg reminds us, that is itself grounded in SCOTUS doctrine.

As far as I'm concerned, this is simply more evidence that the conservative epithet, "judicial activism," is most often little more than code for "stuff I don't like."

Daniel Suhr's reply to his critics over the other case, Kohn, is even more illuminating. "I’m not going to go around waving it as a red flag activist case," he says. Sounds like a major concession and a retreat, to me. And yet, there it is in his "white paper," presented as a demonstration of Butler's "arrogance" and "failure to defer."

Well, guess what. You can't have it both ways.* If you're going to present Butler as a "judicial activist, arrogantly failing to defer" to other political entities, then don't use Kohn as an alleged example of same. Because it's not.

I have absolutely no objections to anyone discussing and criticizing Butler's — or anyone else's — jurisprudence; in fact I may be even more of a "dork" than Suhr himself in that sense, and I encourage such discussions. And I congratulate Suhr for taking the initiative. But it seems to me Suhr had a political objective in mind before he went sifting through Butler's opinions in search of evidence to support his preordained goals.

It's also obviously no coincidence that Suhr selected Rick Esenberg's indicators of "judicial activism" with which to measure his partisan interpretations of Butler's opinions. There happen to be other criteria defining the notion of judicial activism than Esenberg's, some of which point to conservative judges as the activists.

It's Suhr's use of inflammatory verbiage such as "arrogance," "failure," and "judicial fiat" to describe Butler's opinions that has not been adequately supported. Not even close. This is what I meant by "overly simplified, if not misleading." And it's also why I've characterized Suhr's paper as more a slanted political attack piece than considered analysis.

Once again, the import of Suhr's reaction to the Kohn criticisms is to support the view of conservatives' colloquial use of the expression "judicial activism": stuff I don't like.

But many of us knew that all along. And many of us would like to see a more convincing argument as to why Louis Butler should be removed from the bench and replaced with a virtually unknown entity from the Wisconsin hinterlands, which is what Suhr, Sykes, Esenberg, et al appear to be recommending. While I have nothing whatsoever to do with Justice Butler personally, nor his campaign, he strikes me as far more eminently qualified to continue in his position than do the credentials of his challenger to usurp it.

* Follow the link for, among other things, an example of Louis Butler's strict constructionist, originalist methodology: State v. Jensen.


Rick Esenberg said...

Rather creative use of ellipses there. I said that your post did not concern me as much as Plaisted's which was "flatly wrong." I see that you don't have Mike's back on that one, I don't blame you.

I refer back to the comment in response to your earlier post. SCOTUS remanded Knapp for reconsideration in light of Patane which, while it did not have a majority opinion, did feature a majority of justices who held that physical fruits ought not be excluded and stronly suggested that 5th Amendment values don't require such an exclusion. Rather than try to reconcile the views of a majority of SCOTUS with exclusion of physical fruits in Knapp, they decided to base their decision in Article I, sec. 8. They did this even though, until SCOTUS remanded with the rather clear implication that they had it wrong, neither the court or the defendant had relied on anything other than the US Constitution.

Given this history, it seems fair to conclude that the court was trying to avoid SCOTUS interpretation of the 5th which they had been perfectly willing to follow when they liked the outcome.

You make much of the fact that I agree that they can do that. Daniel knows that. We went over it in my class on the Wisconsin Supreme Court. He also knows that some jurists and scholars argue that it ought not to do it or at least ought to do it only in certain circumstances. I think that some of the concerns around judicial restraint are implicated in that debate although I don't think I have ever, strictly speaking, criticized New Federalism as "activist."

As for my "criteria", I know that other people use different criteria. I disagree with them.

Finally, I am not going to endorse anyone in the SCOWIS race (not that anyone would much care). I am going to comment on the issues and I understand that, given that I have a different approach to these issues than the incumbent, it's going to seem like I am. But I'm not going to shut up about something that I feel very strongly about at a time when everyone is paying attention.

Daniel Suhr said...

Thanks for continuing the conversation, IT.
Obviously it is true that Patane was a plurality. But consider the most famous flurality of recent years, Planned Parenthood v. Casey. Would anyone say that the rule of Casey is unclear? No. The fact that it is a plurality opinion does not change the fact that it is the governing law on the topic.
As Justice Wilcox points out in dissent, the Wisconsin Supreme Court has (had) a long tradition of following the US Supreme Court's lead interpreting cognate state constitution. So while Michigan v. Long gives permission to state supreme courts to go their own way, Wisconsin precedent is not to take that option.
As for Kohn, just because it is not a red flag activist decision does not mean it is not an activist decision. Part of the goal of my post was to look at cases that don't receieve much discussion. Otherwise we get tied up in a debate about the same five cases, when the reality is that many other cases show activist tendencies, even if less strongly.
It is arrogant to consistenly supplant your own judgment for that of another institution when that institution is entitled to deference.
It is activist to consistently fail to follow the precedent of the Supreme Court.
It is "judicial fiat," a phrase from a Wilcox dissent, to insert words into statutes that the legislature did not place there.

illusory tenant said...

Thanks, gentlemen. I don't want anyone to shut up -- then there would be nothing to facilitate the collective dorkiness.

It is "judicial fiat," a phrase from a Wilcox dissent, to insert words into statutes that the legislature did not place there.

Are you referring to Kolupar, Daniel? Because Wilcox didn't actually say "judicial fiat," he characterized Butler's modifying "costs" with "reasonable" as arbitrary.

I suppose you could argue that arbitrariness is occasionally a component of judicial fiats, but in this case there involved a matter of statutory construction, and I think it's a bit of a stretch to call Butler's fairly well considered reading of the statutory scheme "arbitrary."

To me it was more of a product of the general grumpiness of Wilcox's dissent, which seems more informed by moaning over protracted litigation than anything else.

In the meantime, let's all agree on one sentiment for the moment: Go Pack! (as opposed to GOPAC).

Daniel Suhr said...

Actually, Wilcox used "judicial fiat" to describe Butler's majority decision in Solie v. Employee Trust Funds Bd., 2005 WI 42, 70:

The majority cannot cite a single provision of chapter 42 that speaks of years of teaching experience or creditable service being placed in the retirement deposit fund or as constituting a credit within the retirement deposit fund. The majority essentially admits that no such statute exists. Majority op., ¶ 36. There is simply no authority to support the majority's contention that a teacher's years of teaching service are placed in the fund. Again, the majority, by judicial fiat, simply declares it to be so.

Anonymous said...

Daniel Suhr: It is arrogant to consistenly supplant your own judgment for that of another institution when that institution is entitled to deference.

No. It might be arrogant to substitute your own judgement for that of an institution entitled to deference. But it's pretty much the opposite of arrogance to supplant your own judgement.

But even translated into English, your reply just seems to shore up one overheated rhetoric with another equally unmotivated rhetoric. Do you really think you've established that Justice Butler has "consistently" substituted his judgement for an institutionally superior one (rather than, say, occasionally augmenting the latter with the former, or some such)? Showing consistency in a record involves a good-faith examination of all or most of the record -- not a handful of data points.

By ordinary standards of evidential reasoning, there's no very clear sense here of someone who set out to look at a judge's reasoning and happened to discover an arrogant activist. It looks far more like trawling the data for support, not understanding -- the aim being to pin the scarlet 'A' on Butler.

And what, after all, do you mean by 'activist'?

illusory tenant said...

This whole idea of "failing to defer" (from whence springs the "arrogance," I presume) is a tricky business, to say the least. By saying that Butler failed to defer to such and such a body, the clear implication is that he was somehow required to defer, and did not: he "failed." But there's quite a bit more to it than that.

Sometimes deference is strictly observed; for example, the deference that an appeals court will show to a trial court's assessment of a testifying witness' credibility. The appeals court will not review that because it wasn't there to hear the testimony, the inflection, or see the body language, accompanying gesticulations, and so forth.

In most instances when courts are reviewing a statute that's been challenged on constitutional grounds (that is, the statute arguably violates some provision in the constitution), courts defer to the legislature in the sense that the statute enjoys a presumption of constitutionality at the point the review begins. But if the court ultimately strikes down the statute, that is not an example of "failing to defer," it's an example of a statute failing to conform with a constitutional provision. Because the court did defer to the legislature, but found its actions unconstitutional.

Generally there needs to be a "rational basis" for why the effect of the statute may infringe against a constitutional command. Furthermore in Wisconsin (and elsewhere) there exists a body of criteria articulated by previous courts according to which judges go about performing the analysis to determine whether this rational basis inheres in the statute. It gets pretty hairy sometimes, and where there is disagreement among judges, it isn't over "failure to defer," it's over the substance of the rational basis analysis itself. That's why many of these opinions run to 80 and 90 pages.

Accusing Butler of "failing to defer" is an employment of politically charged language that, without proper context, suggests judicial tyranny or incompetence when the truth of the matter is that Butler's reasoning may well have been more rigorous and therefore superior to that of those who disagreed.