Thursday, May 14, 2020

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

By Josh Blackman - May 14, 2020 at 12:30AM

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."



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