A Court Unbound? The Recent Jurisprudence of the Wisconsin Supreme Court

In assessing whether the Wisconsin Supreme Court has moved in the direction of “activism” or “restraint,” it is helpful to define terms. While it is common to hear that one judge’s activism is another’s restraint, this paper will presume that these terms, while lacking scientific precision, do have meanings upon which reasonable people—even those of differing sentiments—can agree.

Judicial restraint, for our purposes, is the notion that judges ought to base their decisions upon a source of authority that is outside of themselves and their own notions of the just. In a democracy, this source should be rooted, at some point, in the formal consent of the governed. As Chief Justice John Roberts has put it, “[j]udges are like umpires. Umpires don’t make the rules; they apply them….”

To apply rules (as opposed to making them), one needs not only to base them in something other than one’s own conscience, but also to approach them as concepts that are suffi ciently concrete to be applied and not continuously “defined.”