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To quote a professor of mine, “It is the purpose of this white paper to facilitate a discussion about this important trend and to foster a dialogue about the proper role of the courts in our state. It is the hope of its author that it begins now—in earnest.” Barely daring to even intimate that my blog post may rise anywhere near to the level of his white paper, I do think the words adequately express my appreciation for the reaction from other bloggers.

First, a brief word on my motive. I wrote this Briefing without direction from anyone or compensation or anything else. I did not let Prof. Esenberg know about it in advance. Sometime between watching G-rated movies and playing board games at the Suhr house over Christmas break, I read 40 or so Wisconsin Supreme Court cases with a Butler opinion. I read them because it was interesting and even fun and I’m a dork like that. I published the Brief because it is important - as I’ve said, judicial philosophies have consequences.

One consequence of going alone, however, is that no one provided editorial feedback. So on Knapp, when I said Fourth Amendment, I meant Fifth Amendment/Self-Incrimination (see Knapp paragraphs 55-56). It was “an extravagant typo” - I was just moving too fast. My oops - I apologize, and I’ve fixed it in the original post.

As to substantive critiques, there has been discussion of four cases - Knapp (IT), Dubose (MT), Kohn (GH), and Armstrong (John) - and my citations to Charlie Sykes, the Wall Street Journal, and Prof. Esenberg. As for the latter, I think you all are blowing them out of proportion. I quoted them in 4 of the 22 cases, and only because they used wording that I liked; their thoughts were the same basically as the dissenting justices. A preview of coming events: there is a research briefing for a future Monday collecting commentary on this Court from scholars and pundits. As for Armstrong, I’ll leave it at the comment thread unless someone wants more.

Prof. Esenberg has already dispatched the criticism of my characterizations of Knapp and Dubose quite effectively. To his commentary I would only add a reference to Justice Wilcox’s dissent (paragraphs 95 to 103) in Knapp, which very clearly lays out how the Butler majority is departing from precedent, as I said.

That brings me to Kohn, which was criticized in a comment on Illusory Tenant, and then echoed by IT as a comment on Esenberg’s blog. First, I would not bill this decision as a startling instance of blatant judicial activism by Butler on the scale of Thomas or Ferdon. IT is correct in saying that the disagreement between the justices is rather more mild here. That does not mean that J. Butler did not engage in a more expansive reading of the equal protection clauses.

The specific debate was over a rational basis review of a statutory classification under the equal protection clauses of the US and WI constitutions. A majority of the Court held that the statute at issue had a rational basis for its classification. Justice Butler would have struck down the statute under equal protection as lacking a rational basis. In that limited sense, his reading is more expansive; one might say his version of rational basis has more “teeth” or “bite” than the majority’s. The majority says that rational basis is a deferential standard (49), and they are right and I think right to defer. That’s about all I can say on Kohn - I’m not going to go around waving it as a red flag activist case, but I do think it is a minor example of a pattern of Justice Butler showing less deference to legislative enactments.

And that was really the point of this white paper - not to offer my own commentary on individual cases, as I am content to let the dissenting justices and occasional outside analyst do that. My goal was to survey the content of and commentary on Justice Butler’s opinions and look for trends and commonalities. IT made the comment “Tarring [J. Butler] as an ‘activist judge’ unmoored from context and a more fair-minded assessment of the complex circumstances of these individual cases is far more raw politicking than considered legal analysis.” I would not say he is unmoored from context - I would say he is too frequently unmoored from precedent and text. And I acknowledge that these cases present complex circumstances - but the memo looked at how he approaches resolving the questions presented by those circumstances. The dissenters were presented with the same complex circumstances, and could have resolved the case without overturning precedents or citing social science. I looked at lots of opinions, and the trends I found across multiple cases were clear signs of judicial activism as that term is academically defined.

• Why Van's the Man - January 5th, 2009
• 9th Cir. Screws up Scouts' Case - January 5th, 2009
• Favorite Moment in the Final Days - December 29th, 2008
• Over on MULS Faculty Blog - December 29th, 2008
• The Race for DPI Superintendent - December 29th, 2008