The Left's Last Hurrah

Ed Fallone’s failed Supreme Court challenge will mean continued conservative dominance


So what are we to make of the 2013 race for the Wisconsin Supreme Court? That Justice Patience Roggensack easily defeated challenger Ed Fallone is unsurprising. In the history of Wisconsin, a justice who has been elected to the court (as opposed to merely appointed) has failed to win re-election only twice. 

In 1855, Samuel Crawford was defeated by Orasmus Cole. Crawford’s mistake was to follow then-regnant U.S. Supreme Court precedent and vote to uphold the constitutionality of the Fugitive Slave Act. We didn’t like slavery. In 1967, Chief Justice George Currie was defeated by Milwaukee County Judge Robert Hansen. Currie’s sin was to vote with a 4–3 majority to lift an injunction against the Milwaukee Braves’ move to Atlanta. We like baseball.

This suggests that the bar to re-election is not high, and we ought to be careful about making too much of the fact that something that almost never happens did not happen again. Circumspection is further warranted by the curious theme of the Fallone campaign, which was to blame Roggensack for discord on the court without explaining why she was responsible or why his election would end it.

To be successful, even fundamentally unfair political narratives need a whiff of plausibility. This one was inert.

Nevertheless, I wrote an article for National Review Online entitled “The Left’s Last Hurrah in Wisconsin” and, at least as it pertains to opposition to the collective bargaining reform, I think this is the case. It is not that there will continue to be a “conservative” majority on the court inclined to “Republican” rulings. It is that there will not be a majority of “progressive” judges who regard the law not as a fairly circumscribed set of rules to be interpreted and applied, but as a source of amorphous values to be identified and developed.

In our time, the legal left is largely given over to a post-modern view of the law. The text and history of constitutional provisions and statutes is thought to be vague and “undetermined.” Because the law is seen to be highly malleable, its meaning is not fixed and is not, as judges like to say, “found.” Rather, interpreting the law is not readily distinguished from “making” it.

In the progressive view, judging is less an effort to apply standards that have been chosen by others than it is to discern “community values” and figure out what standards will serve them. Thus, liberal judges and academics speak less of the First Amendment (“Congress shall make no law abridging the freedom of speech…”) and more of “First Amendment values,” i.e., why is speech good and what forms of speech serve those good purposes.

The approach was unwittingly demonstrated by U.S. Supreme Court Justice Anthony Kennedy in recent oral arguments regarding same-sex marriage. He wondered “what the court should say” to children of gay and lesbian couples who might want their parents to be married.

For conservatives, this is the wrong question. Unless the text and original public understanding of relevant constitutional provisions can be found to confer a constitutional right to same-sex marriage, it is not for the courts to “say” anything to particular constituencies desiring a particular policy. Not all problems have a constitutional solution, and it is not for judges to right every wrong (if you believe the traditional view of marriage is wrong).

So what does this have to do with Act 10? By precedent and traditional canons of legal interpretation, there is no right to collective bargaining. It is a privilege conferred by the Legislature, and it may be eliminated — or modified — as it sees fit. To say, as one Dane County judge did, that collective bargaining is restricted in a way that individual bargaining is not is only to restate the received view.

Only by adopting nontraditional — and somewhat novel — views of equal protection or other constitutional guarantees, can one conclude that Act 10’s restriction of collective bargaining is unconstitutional. 

Even with a change in the composition of the court, it was unlikely that a majority of the justices would adopt such a view. Now it is almost certain that they won’t. 

Following the court’s 2005-’06 term, there was a widespread outcry — among the public and within the legal community — regarding the then-liberal majority’s seeming abandonment of traditional tools of judicial restraint in favor of more progressive modes of interpretation.

In the five elections since then, the conservative candidate has won four times, and no member of the conservative majority will stand for election until 2017. At least for now, this was also the left’s last hurrah on the court.

This spring’s election might have been a forgone conclusion made more inevitable by a stillborn challenge, but it was no less significant for that.

Richard Esenberg is president of the Wisconsin Institute for Law & Liberty and an adjunct professor of law at Marquette University. He blogs at Shark and Shepherd.