Dark Justice -- Chapter 30
At Least Tell Your Clients

Judicial Power, Judicial Procedure, Judicial Activism

At Have Opinion, Will Travel, the anonymous weblogger (who claims to be a state appellate judge) wrote:

Yesterday the Wisconsin Supreme Court released this opinion imposing on law enforcement agencies, a requirement to tape record juvenile interrogations in order for the fruits of such interrogations to be admissible in court. While recording confessions of everyone (certainly including juveniles) is undeniably a good idea as noted here, it seems to me the real question is whether it should be a court or a legislature that makes these kinds of policy decisions?

Before commenting on the case, I pulled up the Wisconsin Constitution, which as I suspected, provides: "The judicial power of this state shall be vested in a unified court system consisting of one supreme court..."  What does this "judicial power" include?  Obviously, we'd need to look at legislative history and all other relevant evidence.  To me, a priori,  it seems obvious that the courts should have the power to draft rules of evidence.  Even Scalia might agree.

In A Matter of Interpretation, Justice Scalia argues that the meaning of the words can be determined by using a sort of "reasonable cocktail party attendee" standard.  That is, how would smart people at cocktail parties understand the words you're using?

Let's imagine that at a cocktail party we said that the legislature has "legislative powers."  What would that include?  Your not-yet-bored companion would reply, "Obviously, the power to legislate."  You'd dig deeper: "But what would that include?"  She might might say, "Hmmm.... Well, to legislate, you'd need to set the time, place, and manner of voting.  You can't legislate without procedures, after all."  That's pretty obvious right?

Imagine still we said that the executive branch had the "executive power."  That would include the power to execute laws - which means the power to enforce them.  Since executive branch officials can't enforce every law, we'd reasonably understand the executive power to include prosecutorial nullification (which today is erroneously called prosecutorial discretion).

So what would the "judicial power" include?  The power to judge. But you can't judge unless you have a controversy to judge.  You can't judge unless you have facts in front of you.  To judge you must weigh and sift - and indeed, exclude - evidence of some facts.  I'm not sure why this is facially controversial, yet alone "activist."

Let me make clear that I am arguing a priori.  There might be evidence that the good citizens of Wisconsin, in adopting their constitution, wanted the judicial power limited.  But under systems of separated powers and co-equal branches, shouldn't we impute the legislative and executive's branches broad understanding of their own power unto the judicial branch?  Is it activist for a prosecutor to nullify, that is, not enforce a law against a guilty person?  Is it activist for lawmakers to draft rules requiring all votes to be cast by 5 p.m.?  Absent compelling evidence that judges lack the power to exclude inherently unreliable evidence,shouldn't we, as reasonable people, conclude that such a conclusion, if not accurate, is not activist.

So it was disappointing that a supposed appeals court judge, while providing an eye-catching headline - "Judicial Activism in America's Dairyland" - would levy such an accusation at his judicial brothers and sisters of other mothers.