These premises, though basic, are not simple. They don’t always co-exist easily, and in fact often conflict. We divide power among three branches of government, and we give each ways to block the others. And our constitutions—federal and state—both entrust tremendous power to our government and promise to preserve individual rights. As Justice David Souter explained, “the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another,” which cases embody, in Justice Souter’s words, “tension[s] the Constitution’s Framers left to be resolved another day; and another day after that.”
We need judges to acknowledge both sides of these tensions, and then to chart a path affirming our fundamental values in resolving the specific tension in each individual case. In deciding such cases, judges extend and strengthen our constitutional fabric. It may seem intuitive that these cases press weak spots in our democracy, such that avoiding them would be healthier for our society. But the opposite is true: judges reinforce our constitutional values when they apply their best efforts to decide hard cases.
We have a system of self-governance, safeguarded by checks and balances, and oriented, as our state constitution says, to “secure [freedom’s] blessings, form a more perfect government, insure domestic tranquility, and promote the general welfare.” Every single one of us has a role to play in fulfilling the promise of self-governance by making our government work for all of us. In Wisconsin, part of that is electing our judges. Judges are essential in our American democracy and were always intended to be so.
What do we need from the judges who play such a crucial role in making our democracy work, not just today but for the generations to come?
- We need judges who are both smart and wise, who bring to the bench every day both their full intellect and a strong dose of common sense.
- We need judges who are fair and impartial, who approach each case on its own merits and look carefully at the law, appreciating the wisdom—and recognizing the shortcomings—of the answers that came before.
- We need judges who can balance interests and appreciate that the court is not the only player in our democratic system, who after considering a question and examining what has been written before, will articulate a clear answer and explain how they reasoned to it.
Some qualities, like wisdom and impartiality, are widely accepted. There are also critically important disagreements about what we want from our judges. One philosophy is that judges should do less, perhaps almost nothing, and demands that judges should rotely “follow the law as written” and must never “legislate from the bench.” They insist that all of the answers are already written and that judges who say otherwise are imposing their own will under the guise of dispensing justice. This idea often asserts that every case contains within it only one logical path to an indisputable answer, and that anyone who deviates, in reasoning or outcome, is motivated by personal political beliefs. This view is overly simplistic, cynical and profoundly wrong. And it is contrary to our constitutional democracy, blazing a disastrous path that leads to unraveling the rule of law.
We can all agree that the answers are not all written. No statute can anticipate every possible circumstance that will arise. And our constitutions do not answer every question. They help orient us, point us in the right direction, and instruct us, in every generation, to continue pressing forward. When we, as a society, face moments of uncertainty and incidents of disagreement, our constitutions do not spit out simple answers upon demand; we need judges to step in.
Our constitutional democracy cannot work without judges who stand up and embrace the task they’ve accepted. We need judges who will meet that duty, consider the hard questions and the inherent tensions, and then help direct us forward. Judges who answer that call play an essential role in helping us fulfill our constitutional destiny and meet the charge left for us, that we’ll leave for future generations what our Wisconsin Constitution promises: an opportunity to “secure [freedom’s] blessings, form a more perfect government, insure domestic tranquility, and promote the general welfare.”
It is a sacred trust, to uphold the rule of law and advance our constitutional mandate. This April, we, the people, have an opportunity to make our voices heard and choose wisely.