tag:blogger.com,1999:blog-2506514005426983269.post626641508006126970..comments2023-10-28T08:02:44.565-05:00Comments on illusory tenant: Treading on Louis Butlerillusory tenanthttp://www.blogger.com/profile/08524761974822871419noreply@blogger.comBlogger6125tag:blogger.com,1999:blog-2506514005426983269.post-60576096878865219242008-01-20T09:46:00.000-06:002008-01-20T09:46:00.000-06:00This whole idea of "failing to defer" (from whence...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 <I>required</I> to defer, and did not: he "failed." But there's quite a bit more to it than that.<BR/><BR/>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.<BR/><BR/>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 <I>did</I> defer to the legislature, but found its actions unconstitutional.<BR/><BR/>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.<BR/><BR/>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.illusory tenanthttps://www.blogger.com/profile/08524761974822871419noreply@blogger.comtag:blogger.com,1999:blog-2506514005426983269.post-45959482444624651612008-01-20T07:18:00.000-06:002008-01-20T07:18:00.000-06:00Daniel Suhr: It is arrogant to consistenly suppla...Daniel Suhr: <I>It is arrogant to consistenly supplant your own judgment for that of another institution when that institution is entitled to deference.</I><BR/><BR/>No. It might be arrogant to <I>substitute</I> 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.<BR/><BR/>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, <I>occasionally augmenting</I> 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.<BR/><BR/>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.<BR/><BR/>And what, after all, do you mean by 'activist'?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-2506514005426983269.post-26219129616438482902008-01-19T21:14:00.000-06:002008-01-19T21:14:00.000-06:00Actually, Wilcox used "judicial fiat" to describe ...Actually, Wilcox used "judicial fiat" to describe Butler's majority decision in Solie v. Employee Trust Funds Bd., 2005 WI 42, 70:<BR/><BR/>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., ΒΆ 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.Daniel Suhrhttps://www.blogger.com/profile/04906553035865159743noreply@blogger.comtag:blogger.com,1999:blog-2506514005426983269.post-72226505318119831162008-01-19T10:26:00.000-06:002008-01-19T10:26:00.000-06:00Thanks, gentlemen. I don't want anyone to shut up ...Thanks, gentlemen. I don't want anyone to shut up -- then there would be nothing to facilitate the collective dorkiness.<BR/><BR/><I>It is "judicial fiat," a phrase from a Wilcox dissent, to insert words into statutes that the legislature did not place there.</I><BR/><BR/>Are you referring to <I>Kolupar</I>, Daniel? Because Wilcox didn't actually say "judicial fiat," he characterized Butler's modifying "costs" with "reasonable" as arbitrary.<BR/><BR/>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."<BR/><BR/>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.<BR/><BR/>In the meantime, let's all agree on one sentiment for the moment: Go Pack! (as opposed to GOPAC).illusory tenanthttps://www.blogger.com/profile/08524761974822871419noreply@blogger.comtag:blogger.com,1999:blog-2506514005426983269.post-20623535522706376522008-01-19T09:34:00.000-06:002008-01-19T09:34:00.000-06:00Thanks for continuing the conversation, IT. Obviou...Thanks for continuing the conversation, IT. <BR/>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.<BR/>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. <BR/>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.<BR/>It is arrogant to consistenly supplant your own judgment for that of another institution when that institution is entitled to deference. <BR/>It is activist to consistently fail to follow the precedent of the Supreme Court.<BR/>It is "judicial fiat," a phrase from a Wilcox dissent, to insert words into statutes that the legislature did not place there.Daniel Suhrhttps://www.blogger.com/profile/04906553035865159743noreply@blogger.comtag:blogger.com,1999:blog-2506514005426983269.post-88844357712287741662008-01-19T09:00:00.000-06:002008-01-19T09:00:00.000-06:00Rather creative use of ellipses there. I said that...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. <BR/><BR/>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.<BR/><BR/>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.<BR/><BR/>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."<BR/><BR/>As for my "criteria", I know that other people use different criteria. I disagree with them.<BR/><BR/>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.Rick Esenberghttps://www.blogger.com/profile/07280070509167910367noreply@blogger.com