"This decision will undoubtedly go down as one of the most blatant examples of judicial activism in" the Wisconsin Supreme Court's "history"

What about Ableman v. Booth (1858)?


Yesterday, the Wisconsin Supreme Court decided Wisconsin Legislature v. Palm. This case declared invalid Wisconsin's stay at home order. Eugene blogged about the 4-3 decision here. Justice Dallet's dissent offered this charge:

This decision will undoubtedly go down as one of the most blatant examples of judicial activism in this court's history.

The label "judicial activism" is meaningless; it is used to describe a decision one disagrees with. But let's assume the phrase "judicial activism" has the meaning often ascribed to it. Justice Dallett writes:

But legislating a new policy from the bench exceeds the constitutional role of this court.

Is Wisconsin Legislature v. Palm the most "blatant example" of "judicial activism"? I can think of at least one other decision that may fit the bill: In Re Booth (Wisc. 1854), which was reversed by the Supreme Court in Ableman v. Booth (1858). This famous decision openly disagreed with Supreme Court precedent.

I discussed the case in my article, The Irrepressible Myth of Cooper v. Aaron.

The fourth source of authority cited by Cooper to establish the principles of judicial supremacy and universality was Ableman v. Booth. This Taney Court case is "widely recognized as one of the most historically significant Supreme Court decisions of the nineteenth century." In the antebellum era, abolitionist Sherman Booth interfered with the capture of a runaway slave in Wisconsin. At the time, Stephen Ableman, the federal marshal, held the slave in custody pursuant to a warrant issued by a federal district court. Booth was arrested for violating the Fugitive Slave Act of 1850. (This law was different from the Fugitive Slave Act of 1793, which was upheld in Prigg v. Pennsylvania.) Even though Booth was in federal custody, the Wisconsin Supreme Court granted a writ of habeas corpus. Justice Abram D. Smith expressly disagreed with Justice Story's opinion in Prigg and ruled that Congress lacked the authority to enact the Fugitive Slave Act of 1850. ("[F]or the reason that the congress of the United States has no constitutional power or authority to punish the offense with which said Booth is charged, and for which he is detained by said warrant; for which reasons said warrant is of no force or validity whatever.") The Wisconsin Supreme Court as a whole affirmed Smith's decision, although on narrower grounds. One justice dissented because the issue had been "authoritatively decided by the supreme court of the United States, the last and final constitutional exponent."

The Supreme Court unanimously reversed the Wisconsin Supreme Court:

The Supreme Court of the United States unanimously reversed this judg-ment.Chief Justice Taney wrote the majority opinion. He rejected the notion that the Wisconsin court could render its "decision [as] final and conclusive upon all the courts of the United States."Once the state court knows the prisoner "is in custody under the authority of the United States," Taney wrote, it "can proceed no further" and must respect "the line of division between the two sovereign-ties."The Wisconsin judges could not grant a writ of habeas corpus because the federal prisoner is "within the dominion and exclusive jurisdiction of the United States."If the state court should attempt to "interfere" with the federal marshal, the Chief Justice warned, "it would be his duty to resist it, and to call to his aid any force that might be necessary to maintain the authority of law against illegal interference," which is "nothing less than lawless violence."

In short, the Wisconsin courts had no authority over a prisoner in federal custody who was held pursuant to a federal warrant. Were the structure otherwise, Chief Justice Taney wrote, "the powers granted to the Federal Government, would soon receive different interpretations in different States, and the Government of the United States would soon become one thing in one State and another thing in another."

I think Prigg was an incorrect construction of the Constitution. Salmon P. Chase was right: Congress lacked the power to enact the Fugitive Slave Act. I also think that state courts judges take an oath to the Constitution, not to the Supreme Court. State judges can and should follow the higher law. And I'm not sure the Supremacy Clause precludes the outcome in Booth. However, under conventional doctrine, Booth flagrantly disobeyed Supreme Court precedent. Such apostasy would, in most corners, be labelled "judicial activism."

NEXT: "Wisconsin Supreme Court Strikes Down Stay at Home Order" as Violating State Rulemaking Procedures

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Judicial activism, more usefully defined, refers to courts overstepping their bounds with respect to other branches of government, not disagreement regarding the roles of state versus federal governments. Especially not in the context of one judiciary (a state judiciary) challenging the interpretations of another (a federal judiciary).

    Some assert that phrase “judicial activism” is meaningless. But that is just an opinion. The phrase can have meaning. The concept is the judiciary overstepping its proper bounds with respect to coordinate branches of government (legislative or executive). Most people would concede that such a thing is at least possible, even if they might disagree on whether particular cases are examples.

    1. I’ll break it down in terms you may understand. When a Court finds the right to abortion written in invisible ink on back of the constitution along with a right privacy that only applies to it. Thats the judiciary inventing law because it wants to and can be termed judicial activism. If otoh a Court stops an unelected bureaucrat from seizing broad legislative powers they’re defending preexisting long established rules and traditions in American society and that wouldn’t be judicial activism to any normal reasonable person. I hope that you don’t charge your clients too much if you can’t tell the difference with years of legal education.

      1. There is a right of constitutional privacy that allows you to kill babies.

        And oh by the way the government spies on everything you do.

      2. Where does it say in the Constitution that judges have the power to defend tradition or long established rules? I don’t recall the tradition clause. Or the long-established rule clause.

        1. The Constitution is largely built upon principles and traditions developed and/or implemented earlier. One of these is balanced and defined powers between branches as opposed to unelected bureaucrats coming out of obscure agencies with powers combining multiple branches capable of overriding Constitutional rights. I’m sorry if this is all new to you.

          1. So, the court is authorized to declare laws untraditional and not-recently established and this is not judicial activism?

            Curious, do these tradition and long-established clauses arise out of the penumbras of the Constitution?

            1. Are you just going to keep making up things to argue against?

    2. If asserting that “judicial activism” is meaningless is “just an opinion”, then asserting that it has meaning is also “just an opinion”.

      1. It is empirical fact that a word has meaning if people use the word, because it has meaning to the people using the word. If the word is not used consistently, that does not necessarily mean the word is headed for extinction. Rather, there could be newly evolving extensions of the word.

      2. I agree.

        Whether any use of the phrase “judicial activism” is valid or invalid to describe a particular circumstance is just a matter of opinion.

        That said, the idea that there is a separation of powers between the branches of the government, and that it is conceptually possible for the judiciary to overstep its bounds for that reason, seems to be an opinion held by most people.

        Thus, I think that saying that “judicial activism” can be a phrase used to describe such boundary violations by the judiciary is a better opinion than the thought that the phrase has no useful meaning.

    3. Well said. Saying “judicial activism” is meaningless and only used by someone who disagrees with an opinion is the pot calling the kettle black.

      Judicial activism is the best way to explain a judge’s departure from well-settled law when the end result benefits the judge’s ideological end-goals.

      As our judiciary is rooted in a common law history & Constitution built on hundreds of years of precedent, a liberal/progressive judge, by their very nature, is much more likely to engage in judicial activism because the Law itself is seen as an impediment to what that judge believes is justice. Legislating from the bench by breaking with tradition, norms, precedent, and insulting logic & reason by performing mental gymnastics.

  2. I grant Article IV, Section 3 does not explicitly declare the authority for Congress to set a procedure for how it be put into practice, or a punishment for interfering with such a procedure. But it surely requires a remarkably narrow construction of Congressional power to conclude Congress lacks that authority.

  3. “Is Wisconsin Legislature v. Palm the most “blatant example” of “judicial activism”? I can think of at least one other decision that may fit the bill:”

    As the headline to this post makes clear, there was no claim that this case was “the most blatant example.” Are we now engaged in rehabilitating Roger Taney? What is the point of this post?

    1. Taney was a federal Supreme Court justice, not Wisconsin.

  4. I particularly applaud the sentences “I also think that state courts judges take an oath to the Constitution, not to the Supreme Court. State judges can and should follow the higher law.”

    I’d add that elected Sheriffs serve a definite purpose: they too take an oath to the Constitution, not to a Governor, and can and should follow the higher law.

  5. Upholds the Constitution==’judicial activism’

  6. The label “judicial activism” is meaningless
    To be fair, a bit of quick Googling finds that Blackman has always been skeptical of the judicial restraint v.s activism labels.

    I disagree – just because it’s often used as a rhetorical cudgel doesn’t mean that looking at what cases are within the role of the judiciary and what are an excursion is somehow useless.

    But I expect to see more support for ignoring these distinctions.

    Or, maybe we’ll just see more like Amos who seem to be working unironically to prove Blackman correct, at least for the very angry conservative set. No reasoning, just ‘I like it, so it’s Constitutional, so it’s not activist.’

  7. “Judicial activism”, at least facially, ought to be desirable. Do we want passive judges who don’t do their jobs?

    The problem isn’t judges being active, it’s judges substituting their own opinions of what the law ought to be for the existing law they’re supposed to actively uphold. This is orthogonal to “activism”, it can be accomplished as easily by passivity in the face of violations, as by actively overturning things that actually comply with the law.

    I think “judicial activism” became a swear word in certain circles driven by office holders who really did want passivity in the face of their own violations. The term is a bad fit for the actual offense as non-office holders see it.

    1. The problem isn’t activism, it’s that all the judges who disagree with me are acting in bad faith!!

      1. Whereas you apparently think it fine and dandy for judges to substitute their own opinion for what the law says.

        Anyone who pretends that judges always, or nearly always, scrupulously follow the law ought to explain how anything other than a unanimous vote can signify scrupulously following the law.

        1. Didn’t say I was into bad-faith judging.

          As for how you can have split decisions amongst judges of good faith, the law is complicated and reasonable people can honestly differ.


          1. You mean …. judges have personal bias, personal opinions?

            *gasp* the horror, the horror!

            1. Glad you agree with me.
              Might want to take it up with Brett, though.

              1. No, you just agreed that judges are not impartial and do not follow the law.

                Whether judges ignore the law from personal bias, or because laws are so damned muddy that they can’t be followed, the fact that these laws are not overturned, but instead twisted to the judges’ personal views is what judicial activism is all about.

                1. Sorry you hate the concept of the judiciary, as run by humans.

    2. Judicial activism isn’t supposed to be contrasted with passivity. It is supposed to be comparing judges to political activists that work hard to achieve particular political outcomes.

      The thought being that if judges create law based on their political preferences as do legislatures or craft orders based on their political preferences as does the executive, they are acting outside of their judicial role.

      Do you disagree that it is a problem if judges act this way? Do you have a better phrase in mind to describe it?

      1. Great points, again.

        Of course the discussion hinges on how one defines judicial activism. Any judge can engage in it by legislating from the bench to further their political ideology. But “progressives” are inherently more susceptible and inclined to judicial activism than “conservatives” by the nature of those ideologies.

        The ideal judge’s role is quintessentially conservative, traditional, and restraining. Judgment is thus passive in the sense a judge simply accepts the law as it is an applies it to the facts as they are. In contrast, progressivism demands constant progress which requires active changes, interpretations, and applications; i.e., activism is necessary to carry out the progressive judge’s view of justice.

        Judicial restraint is more difficult for some than others. Progressive judges are especially resistant to rendering a decision that results in an unjust outcome. They would rather change the law themselves (in how they interpret or apply it) to ensure a more just result. Conservative judges place more value the rule of law and their authority to carry it out. Simply put, if the law is unfair or would result in an unjust outcome, then our Constitution provides a clear framework for changing that law in the legislature. A judge who oversteps their Constitutional authority to carry out his own version of justice engages in judicial activism.

  8. Judicial activism is looked at as the court attempting to fix a problem by exerting their will and procedures into legislation or procedures. An example would be a previous WISC ruling that mandated specific procedures for victim ID of suspects by photographs.
    Here the court didn’t try to fix the problem. They didn’t impose their own solution, they ruled on a blatant overreach of power by the executive branch.
    Gov Evers (D) has never worked in a bipartisan manner with our (R) legislature and his past actions have shown this. This morning he made the statement that Republican legislators have convinced 4 justices to throw our state into chaos, signalling his continuing unwillingness to work together to resolve the current crisis.

    1. Well said. Agreed.

  9. To say that judicial activism is meaningless is to suggest that the judicial authority is unlimited. If you say instead that accusations of judicial activism can be thrown about carelessly, then you may have a point.

  10. I think it was reasonable for the Wisconsin Supreme Court to characterize the “order“ as a rule rather than an order. It is indeed applicable to an indefinite general class rather than specific, fixed, identified parties. Classifying it as an emergency rule would impose a 150 day maximum duration for emergency rules made without following the procedural requirements. Rather than treating the misclassification as fatal and striking it down entirely, I would simply have construed it as an emergency rule, imposed the statutory time limit, and given the department the rest of the 150 days from the initial promulgation of the rule to follow the required procedures for issuing a rule of longer duration.

    Although parts of the rule might have exceeded the department’s powers, the statutory grant of authority to the department to make emergency rules and orders addressing epidemics appears broad enough that I believe substantial parts of the rule would survive a careful, neutral ultra vires review.

    A court here has to use a scalpel, not a battle axe.

Please to post comments