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Judicial philosophies matter. The reasoning employed by judges when they make decisions has consequences. Court decisions affect the safety, prosperity, and culture of our state. But the reasoning employed in coming to those decisions can strike at the very heart of our constitutional system of government.

Justice Louis Butler is up for election in April. It will be the first time he faces the voters of the state after his three years on the Wisconsin Supreme Court. In order to help opinion-leaders and observant voters understand Justice Butler’s record, I have read all of his opinions where there was a divergence on the Court. I have selected just over 20 cases where Justice Butler’s opinion was substantive and the contrast with the other opinions was stark. In the first ever GOP3.com: Research Briefing, From the Pen of Justice Butler, which is available as a PDF file, I have summarized these cases and drawn some conclusions. I encourage you to read the Briefing and hope it gives you a better understanding of Justice Butler’s judicial philosophy.

A judicial candidate must “encompass open-mindedness” and have a “reverence for facts” (quoting Bill Kraus). Absolutely. But interpretation of the statutes and the Constitution is the most important work of a Supreme Court justice. And that’s why a justice’s interpretations of the law are critical in whether or not he should be elected to the bench.

From the 2005-06 Blue Book’s “Feature Article,” Demystifying the Judicial Branch (p. 163 – 166), at least three methods of statutory interpretation can be used.

• The “Plain meaning rule:” The predominant method … used by Wisconsin courts... judges look at the actual words of the statute to determine what it means 
• The “mischief rule,” under which judges look at what problem the statute was intended to solve and interpret the statute so as to solve the mischief. 
• The “golden rule,” under which judges aim to avoid absurd results.
  
  Agreeing on the proper method for interpreting a statue is only the first step. Two judges purporting to give a statute its plain meaning may say that the statute means two different things. There are numerous guides, or canons, to apply in determining the plain meaning of a statute.
  
  Differing “canons of interpretation”
• A judge should give effect to every word in a statute. 
• If the same word is used more than once in a statute, it has the same meaning each time it is used, but if a synonym is used, the synonym must have a different meaning. 
• The specific overrides the general, so if there are two relevant statutes, the more speciric prevails.
• Statutes must be interpreted as a whole and… judges should not interpret a sentence or phrase in isolation.

And on and on it goes. Discussing the differing degree to which some judges look beyond the text of a statute to interpret it. The degree to which some judges use legislative history. And then we have to talk about differing interpretations of the Wisconsin and U.S. Constitutions.

Phew. All bogged down in what’s not even legal doublespeak. The point is, a judge’s philosophy matters. And in April, with a swing seat up for election, it matters a whole lot.

Law student Suhr wraps up his research listing specific instances in which Justice Butler is a judicial activist (page 8) and concludes:

Justice Butler does not show every indicator of judicial activism in every case. On the whole, however, his opinions show a disturbing proclivity for activist methods of reasoning. Other essays catalogue the practical policy impact of his votes in cases. This paper has evaluated the reasoning employed in his opinions to conclude that Justice Butler is a judicial activist as that term is commonly and academically defined.

That’s why this election is about more than “intelligence” and “open-mindedness.” This election is about judicial interpretation and judicial activism. Yes, it’s about issues – and it’s about public discussion of Justice Butler’s record. Don’t let anyone tell you different.

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