Does the term “judicial activism” have some objective meaning? The Capital Times does not seem to think so, reporting earlier this week:
[C]ourt observers and legal scholars are skeptical that the descriptive terms [judicial activist and strict constructionist] have any meaning, except as buzzwords used by conservative candidates to create a clear distinction between themselves and their more liberal rivals.
Now, I do not intend to defend “strict constructionist,” which is the term the story uses to describe conservatives, because I do not think most conservatives are “strict constructionists.” To quote Justice Scalia,
I do not think the Constitution, or any text should be interpreted either strictly or sloppily; it should be interpreted reasonably. Many of my interpretations do not deserve the description “strict.” I do believe, however, that you give the text the meaning it had when it was adopted.
Textualist and originalist are better terms. Judicial restraint used to be the preferred description, although judicial modesty is on the rise as the preferred label.
My point in this post, however, is to defend the term “judicial activist” as possessing objective meaning.
Chief Justice Abrahamson does not believe it does — she believes that “When you say somebody’s an activist judge, what you’re really saying is I don’t like that particular opinion.” It is, in other words, a subjective judgment by each person about any given case. Respectfully, I disagree.
Professor Rick Esenberg defined restraint in his introductory essay “A Preliminary Word About Judicial Activism and Restraint.” He writes that restraint “is the notion that judges ought to base their decisions on a source of authority that it outside of themselves and their notions of the just.” Judge Michael B. Brennan of the Milwaukee County Circuit Court has offered four “objective indicators of judicial activism,” namely “flexible adherence to precedent, insufficient deference to political decision-makers, broad holdings and opinions, and broad judicial remedies.” The more present these indicators are, the more likely the opinion is departing from a source of authority outside themselves.
Now, as Professor Esenberg points out, some precedents and some enacted laws should be overturned for violating the text of a higher law. But I think reasonable and honest people can step back, look at a body of work, and come to a conclusion about a whether a judge’s judicial philosophy is one of modesty or activism.
(It is worth noting here that some liberals acknowledge that judicial activism exists and defend it for what they think are good reasons. Others, like Abrahamson, deny that there is such a thing as judicial activism/restraint and treat all judges as interchangable “fair, neutral, non-partisan, and impartial” resolvers of cases.).
In the Cap Times, UW Professor Charles “Franklin said there is a positive side to the name-calling. Judicial law is inherently complex, and in general voters don’t understand it.”
Voters may not read every single opinion (lawyers don’t!), but they certainly do have a good idea of what kind of judges they want. Exit polling from the 2008 election shows that when given a choice between Barack Obama’s empathy quote ( “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.”) and a judicial restraint position ( “We need judges who look at each individual equally. We need judges who will apply the law the same to each person regardless of an individual’s background or cultural or economic circumstances.” ), voters chose the restraint position 53 to 43. Lots of other polling bears out the same answer.
We could use terms other than “judicial activism” and “judicial restraint.” As I say, I think “judicial restraint” will gradually be replaced by “judicial modesty.” But underlying the terms used is a fundamental understanding by voters that there are two types of judges: Those that do what the law requires, even when they don’t like that result personally, and those that do what the judge personally believes to be “just” or “right” in that case (“equitable” to use a legal term). “Judicial activist” currently describes the second class — it is more than a subjective judgment — it is a legitimate label grounded in thoughtful analysis of what the judge has written.
I believe that “judicial activism” represents effective use of framing similar to “tax relief”. The phrase tax relief establishes a background where some pain or discomfort exists requiring relief. Tax relief automatically makes those offering it the good guys and those who may oppose it the bad guys. Whenever those who oppose it use the term they have already painted themselves into a corner.
The term activism gives rise to a variety of responses before the conversation goes any further. It is a term that I would estimate creates unease in a majority of people that hear it, especially when coupled with the term judicial. In an area where most people have very little background knowledge, using this type of framing can be very effective. I’m sure that this term was chosen for that very reason. Strategically it is a smart way to start an argument about judicial philosophy if you are a legal conservative. Framing has been employed effectively by the conservative legal community to further their argument and has contributed to the success of the movement.
This being said, i don’t think the term has any beneficial use beyond setting the stage for a conservative argument. I think that it implies illegitimacy in whatever is being termed activist. Judicial decision making is a complex topic and judicial activism is directed at simplifying the topic for those who have not been exposed to those complexities. I would argue that the legal liberals who accept the term accept it because it is widely used and employ it to label a judicial philosophy that could be described in a number of other ways. They do this, of course, to their own detriment (it’s like opposing tax relief).
Overall framing is something the right has become very good at in the last 20 years or so. I think the left has only recently caught on but they too have now begun to effectively employ it. Framing is a useful way to define one’s own values and convey them but I don’t think it creates legitimate or accurate labels that should be used across the board. It is not a neutral framework for a debate on merit, it is a political framework embedded with underlying and prejudicial meanings.
It’s certainly *theoretically possible* to adhere to a definition of “judicial activism” that expresses support for a restrained vision of the judicial role, and a profound respect for precedent, independent of ideology or even a sense of whether the precedent is correct or not. And maybe 3 or 4 people (you, Cass Sunstein, and 1 or 2 others) actually use the term that way. But I think C.J. Abrahamson is correct that 99.99% of the time the phrase is used, it refers simply to a decision the speaker disagrees with. As evidence of that, consider the fact that congressional Republicans criticized the 11th Circuit as judicial activists, without any apparent sense of irony, because the 11th Circuit *failed* to issue an injunction in the Terri Schiavo case. I.e., the 11th Circuit’s inactivity was “judicial activism.”
I agree with you generally, Jason, that conservatives have succeeded in framing it better. Although, in all fairness, some liberals have willingly adopted the label: after all, J. Breyer did title his book ACTIVE LIBERTY.
I’ll also promptly concede to Prof. Boyden that the term “judicial activist” sometimes gets tossed around on a subjective basis.
But I don’t think that is true 99.99% of the time, or even most of the time (at least, not by opinion leaders, scholars, and even interested attorneys). I think most of the time, underlying the label “judicial activist” is a hard reality that a court has gone off course.
This can be said of cases – Kennedy v. Louisiana is a recent and helpful example. The decision was a raw exercise of judicial will; five justices did not like the law at issue, so they used their power to overturn it. The considered judgment of the elected legislators of Louisiana did not matter – the justices did not like it.
While individual decisions can be activist, I think the term is most useful when it describes a body of work by a jurist or court. When you look at a number of (appellate) opinions, you get a much better sense of things. For instance, in the context of the Wisconsin Supreme Court, you can identify a number of cases, some headliners and some not, where the Court engaged in “activist” behavior: Ferdon, Thomas, Knapp, and Dubose are the usual examples. Based on these examples, and many other cases, you can see the clear consistent differences in judicial philosophy and method that lead to different case outcomes. Some justices are activists, and others are not. The judges who are activists may believe they have good reason to be so, but we should at least acknowledge that there is a difference between the two camps.
I agree that often there are clear and consistent differences in judicial philosophy. I just do not think that judicial activism ably encapsulates those philosophies. For instance, the “clear statement canon” of new federalism in my view is an activist tool that falls in line with your definition. Yet this canon is usually employed by Justices who use the term judicial activism to critique the philosophy of others. Gregory v. Ashcroft sets the stage for its use and later abuse. From my point of view this canon often raises a flag that judges have “gone off course”. In that case how do I weave activism into a description of their overall judicial philosophy? Will I gain any traction describing Justice Scalia as an activist in some areas of the law?
In the end I think I employ the term activism but only to describe outcomes that I disagree with. I think this is the beauty of the conservative employment of the term judicial activism. If you ask a legal conservative to point out cases that are activist they can name many and tell you why. The why turns out to be the justification for legal conservatism. If you ask them to tell you an activist case they agree with they cannot because activism by definition violates their principles. It only applies to others.
I think if we are going to continue to employ this term and pretend it has some hard and fast neutral meaning then we need another term that provides a comparable balance. I would call this “judicial reticence ©”. I would use it in situations where courts have stood behind conservative principles to undermine the purpose of the law because it is law they do not agree with. The Slaughter House cases would be a good example. There, couched in conservative language, the Supreme Court derailed the natural course of 14th amendment jurisprudence with an absurd decision. Flowing from that decision is the tangled entirety of our due process and equal protection jurisprudence now necessary to fulfill the purpose of the Civil Rights Amendments. Plessy v. Ferguson is another shinning example of judicial reticence.
There is a problem any time the neutral descriptive term is something one is accused of, rather than described as. As a result I end up accusing Scalia of judicial activism in cases where I disagree with his reasoning and accusing him of the opposite (now and forever known as judicial reticence) in other cases where I disagree with his reasoning (and calling him spot on when I agree with him regarding intellectual property and other areas). What I should really be discussing is the usefulness of the canon he employs, whether it is appropriate to look to legislative history, or how we decide when a result is absurd. I think a less loaded term would be much more constructive.
I disagree with Bruce and, as she knows, the Chief Justice in characterizing the term judicial activism as a term for a decision with which one disagrees (or, as she puts it, a “slur.”)
I acknowledge the fact that it is used promiscuously and without reflection by lay persons and lawyers who have given the matter inadequate reflection. Bruce is spot on in his criticism with respect to use of the term in connection with the Schiavo case and I am not sure that I agree with Daniel that DuBose and Knapp are examples of judicial activism (although I appreciate that he has an argument for his position which is not simply that they were wrongly decided). But the idea that 99.9% of people who use the term have no coherent definition is not an accurate description of the debate on these matters.
I also think that the term judicial activism has its own set of difficulties in that it implies that the crux of the matter is leaving stand the action of other branches of government. A decision that refuses to set aside an unlawful act of Congress is just as, “activist” as one that overturns a lawful enactment. This is why I disagree with Cass Sunstein, who at least in his empirical work, seems to equate activism with invalidation of an executive or legislative act. It is also why I have no need of Jason’s term “judicial reticence.”
In my mind, the heart of the matter is the extent to which judges adhere to a set of principles and methods which recognize the proper province of the judicial role. Ferdon, in may view, was a wildly activist decision – not because it struck down malpractice caps – but because it endorsed an approach to equal protection analysis that has no content other than judicial reexamination of the policy choices of the legislature. There is nothing there except the personal preferences of the court.
As to Jason’s question as to whether there are decisions with which those, like me, who think the term has some meaning (even as we might prefer another one), agree on the outcome but still would call activist. He, of course, must mean the outcome of a decision without regard to whether I think it was legally correct. If I thought the latter was so, I wouldn’t call it “activist” or, as I might prefer, judicially ambitious.
Daniel has provided one example for me. Kennedy v. Louisiana. As a matter of policy, I am opposed to the death penalty in all cases. But I hardly think that the Constitution prohibits it in the special case of sexual assault of a child. More fundamentally the method that the majority used to reach that conclusion amounts to little more than the imposition of judicial preference grounded not in a fairly limited set of principles derived from a well defined source of authority that has been legitimized by the political commumity, but by a rather uncabined consideration of a variety of arguments. Much of Justice Kennedy’s majority opinion would be a great speech on a legislative floor. He’d get my vote.
But when delivered from the bench, it is problematic.
I feel like the argument here has split to two topics: (1) the appropriateness of using the phrase “judicial activism”, and (2) the appropriateness of judges practicing “judicial activism.” I won’t go into the former much, except to say this: Professor Esenberg, if you believe that the term is only used perjoratively by “lay persons and lawyers who have given the matter inadequate reflection,” I’d note the comment Dan made about “noting here that some liberals acknowledge that judicial activism exists and defend it for what they think are good reasons.” Are you suggesting that Dan didn’t give it adequate reflection? I’m fairly certain he did, and then heavily implied it was a negative thing defensible only by “what they think are good reasons.” And, hey, that’s his opinion. But I don’t believe you can say fairly that the debate doesn’t at least have a good portion of it centering on the term being used negatively.
As to the latter, here’s my problem with the arguments against judicial activism: they seem to ignore that the very principle of judicial review was an act of judicial activism itself! Isn’t that what professors all teach us in Con Law: that Justice Marshall employed trickery in Marbury v. Madison, fashioning the power of judicial review out of whole cloth? Surely there was little in the law at that point to permit judicial review. Hence, if we oppose judicial activism, it’s the fruit of the poisonous tree; every precedent would have to be wiped from the books, because no court would have the right to have made the decisions in the first place!
Look, I’m not saying that allowing what is often termed as “judicial activism” is all roses and sunshine. Some HORRIBLE examples of misuse of the power have been covered up because people ended up liking the result (I’m thinking of Roe v. Wade as my core example of that.) But the issue with the majority of the opposition to “judicial activism” is that people let their personal politics get in the way of their legal opinion. Roe shouldn’t be deemed bad because one believes women shouldn’t have the right to choose; Roe should be deemed bad because Justice Blackmun wrote a majority opinion based on medical conclusions that he had no business making. And yet, do you know what three cases I hear people gripe most about as “judicial activism”? Roe, Lawrence v Texas, and Goodridge v. Department of Public Health. Can anyone explain to me what’s legally illegitimate about the latter two decisions?
Mr. Golden writes:
“Professor Esenberg, if you believe that the term is only used perjoratively by “lay persons and lawyers who have given the matter inadequate reflection …”
I don’t believe that. I have used it pejoratively myself. What I did say is that it is often applied to cases in which it should not be by persons who either don’t understand what’s involved or haven’t thought it through. For example, Justice Butler’s dissent in the Anderson case was called “activist.” It was not.
You are right about Roe. Blackmun’s medical discourse was problematic, but may I suggest that it was a symptom and not the disease? The difficulty in Roe, Lawrence and Goodridge is the failure to root the fundamental rights involved in anything but the preferred view of the majority on the policy question at hand. Why a fundamental right to choose to have an abortion or to marry a person of the same sex and not a fundamental right not to have your home taken from you and conveyed to a developer or to marry two people of the opposite sex or to “define one’s own concept of existence, of meaning, of the universe or of the meaning of human life” by exploring them, as did Ken Kesey and the Merry Pranksters, through hallucinogenic drugs or by refusing to be sent half a world away to kill or be killed.
There are arguments that can be made to distinguish these various claims for autonomy but they are not arguments that are readily grounded in some authority other than a judge’s own view of the good.
As far as Marbury, that’s a topic for another day but it does bring to mind one typical move against those who criticize a more robust view of the judicial office. Judicial restraint, textualism, originalism, etc., don’t imply that judging is a mechanical process and, therefore, they can’t be undermined simply by showing that some answers are indeterminate and there is no way to get them without some consideration of extratextual matters. As Justice Scalia says “I too am a sinner.” But recognition that we live in a fallen world, so to speak (or, more accurately, judges can’t resolve all questions that they are clearly directed to resolve by resort to a self-contained and external authority) doesn’t mean that that we are now free to cast off all — or most — constraints.
Andrew, I’d suggest you pick up a copy of Professor Christopher Wolfe’s THE RISE OF MODERN JUDICIAL REVIEW, where he argues that the framers did intend to have some form of judicial review, but that it has exploded way beyond those original purposes.
There are several people who think judicial review is unconstitutional. To my mind, a coherent anti-judicial-activist would say, nevertheless, it’s so embedded in our constitutional history that it would actually be too “activist” to get rid of it. That is, I would propose as the acid test of anti-activism whether one is willing to uphold decisions or statutes that one believes are in fact unconstitutional. The premiere anti-activism decision on that measure is Casey.
Prof. Esenberg I actually did mean agree with the legal reasoning. I will concede that the term may be useful in initially signifying what one believes is an illegitimate exercise of judicial power. But, I think your discussion of Kennedy v Louisiana provides a an example of what I am trying to say. If you simply call the decision activist all I know is that you disagree with the legal reasoning. However, the rest of your paragraph lays the ground work for an actual discussion. I think we are better served discussing the rest of that paragraph than worrying about labeling the decision activist.
In addition, I think Andrew’s examples point out situations where people find a moral element and if they disagree with a decision on moral grounds they also term it activist. Again the term activism confuses the discussion, whereas Andrew’s description of Roe clarifies it in a way that focuses the discussion and enhances the opportunity for fruitful debate. In my view judicial activism is too broadly used and too charged with political implications to be an efficient and effective descriptor. How much does the term further any discussion or debate? Does that benefit balance out its indefinite nature to the extent that it becomes a term worth employing in a discussion about judicial reasoning?
Just to clarify, in the judicial reticence cases I was referring to the reading of the constitutional power, not necessarily the failure to set aside a law subsequent to that reading. I meant it to apply to cases where the purpose of a legislative act is to grant broad power, but judges interpret the act very narrowly to fall in line with their own ideology, thereby subverting democratic will. (Often this is more than just limiting, it is eliminating.) Therefore, in my view, the Slaughterhouse cases (in their reading of privileges or immunities under the 14th amendment) and some 15th Amendment cases (limiting when Congress can act under section 2) would apply, as well as the reading of the equal protection clause in Plessy. I think the failed reading must come first and that is what I was attempting to describe. It may seem trivial, but it is how I was attempting to distinguish reticence from what Professor Esenberg described as another version of judicial activism. (I suppose it could still be activism, but it just seems very stationary to me.)
While I’m not sure it’s the “acid test,” one good test for judicial activism is whether a judge has ruled in favor of something he would disagree with on a policy level, or against something he would agree with.
For instance, Prof. Stephanos Bibas of Penn. has labeled Justice Scalia “the unlikely friend of criminal defendants.” One would expect that as a conservative, Justice Scalia would want to lock up the criminals and throw away the key. But in the confrontation clause area, Justice Scalia’s textualist judicial philosophy compels him to rule in favor of the rights of criminals to challenge their accusers. His vote for free speech rights in the flag burning case also comes to mind.
Scalia may be a sinner, too, sometimes, but at least he has an articulated judicial philosophy that requires him to set aside his own policy preferences to obey the law as it is written.
Today’s Sheboygan Post carries a story concerning Chief Justice Shirley Abrahamson, including:
“Conservative and liberal labels have very little meaning in the judicial arena,” said Abrahamson, who is seeking her fourth 10-year term on the court. “I’m not for or against anybody, or for or against any cause. I’m a judge who judges things according to the law.”
Again, respectfully, I disagree with the part about labels. Such labels DO have meaning – they are a short-hand for two different kinds of methodology and judicial philosophy. The liberal label applies to judges who make decisions based on foreign law or their perception of what “the image of justice” demands (2003 WI 42). Conservative judges make decisions based foremost on the text of the law before them. These labels DO mean something.
With regard to “liberal” and “conservative” state appellate court judges, I believe that the terms most commonly are used to describe the patterns of outcomes that judges reach. The dominant issues in this regard are whether personal injury claims are more expansively or restrictively permitted and whether the procedural protections afforded criminal defendants are more expansive or more restrictive. Huge outside money is invested in state judicial campaigns largely out of concern about the former issue, although most of the advertising such money buys seems to focus on the latter issue.
2003 WI 42
With respect, Mr. Suhr, that’s not exactly the best choice of cases for the project of separating “conservative” from “liberal” judges.
In State v. Picotte, the entire court abandoned a centuries-old common law rule which greatly favored criminal defendants, requiring the death of a victim within a year and a day of the initial criminal act for the purpose of bringing murder charges.
The three (“conservative,” to your mind, I suspect) dissenters disagreed as to the retroactive application of that abandonment. They felt the rule’s abandonment should apply retroactively with respect to the defendant, Picotte.
They appealed in particular to a U.S. Supreme Court case, Rogers v. Tennessee, and castigated the majority over its “apparent disregard” for Rogers.
In Rogers, the Tennessee Supreme Court acted as did our unanimous court in Picotte, by abandoning the year-and-a-day rule. But the TSC additionally allowed Rogers’s homicide conviction to stand, by retroactively applying the freshly minted abandonment. That’s the same result the Picotte dissenters wanted.
You might wish to take a look at conservative standard bearer Justice Scalia’s own dissent in Rogers (joined in full by his frequent companion, Justice Thomas). It seems to me he would have fallen squarely in line with Justice Abrahamson’s disposition in Picotte, at least to the extent of its refusal to engage in an ex post facto application of the common law rule’s abrogation.
That is, while he may not have joined Justice Abrahamson’s opinion, he most certainly would have concurred in its result.
The Picotte dissenters, on the other hand, would find themselves subject to the following paraphrase of Justice Scalia’s admonitions:
“The dissenters today approve the conviction of a man for a first-degree reckless homicide that was not homicide (but only aggravated and substantial battery) when the offense was committed. They thus violate a principle — encapsulated in the maxim nulla poena sine lege [no penalty without a law] — which ‘dates from the ancient Greeks’ and has been described as one of the most ‘widely held value-judgment[s] in the entire history of human thought.'”
(Yes, that’s Justice Scalia reasoning proceeding from a “value-judgment.”)
Even so, the majority’s opinion in Rogers stands only for the proposition that the Tennessee court’s retroactive application of a newly discovered/abandoned rule was not a violation of Due Process. It was in no sense affirmatively binding on the Picotte court, as the Picotte dissenters seemed to think.
As for “the image of justice,” please note that the initial reference is indicated by the prefatory term, “Moreover.” Nevertheless, Justice Sykes seized on and made much of this reference, which is more of an afterthought than anything else.
The majority’s decision isn’t based on some ethereal, extra-textual “image of justice,” or even one of the .jpg cartoons that Justice Sykes located on somebody’s Tripod.com homepage and incorporated into her dissent.
It’s simply an observation that the majority’s result in addition comports favorably with the notion upon completion of its substantive reasoning.
Likewise, Justice Scalia’s own observation in Rogers that, “Today’s opinion produces, moreover, a curious constitution that only a judge could love” isn’t accusing the majority Justices of succumbing to erotic daydreams.
I might add, Mr. Suhr, that you committed similar offenses once upon a time when you claimed that several opinions of Justice Butler’s were followed by other States. On closer inspection it turned out that the passing references to Wisconsin law were made only after the application of those other courts’ own independent reasoning, reasoning based entirely upon the caselaw of their own respective jurisdictions.
They added — either in footnotes or at the end of their opinions — in essence, ‘Oh, by the way, it looks like we’re in accord with a couple of other States now, too. Just thought we’d point that out for the benefit of any would-be Shepardizers.’
One final note about Rogers v. Tennessee. It pitted O’Connor, Rehnquist, Kennedy, Souter, and Ginsburg against Scalia, Stevens, Thomas, and Breyer. What better demonstration of Justice Abrahamson’s disinclination toward the very labels in which you seek to find such dispositive meaning.
Daniel, I note you quote Chief Justice Abrahamson saying “[w]hen you say somebody’s an activist judge, what you’re really saying is I don’t like that particular opinion.” I heard her say something substantially similar to this quote this spring.
When I heard her speak, she was sitting next to Justice O’Connor, a Reagan appointee and middle of the road to conservative justice. O’Connor suggested that an “activist judge” was one who got up and went to work.
So it seems it’s not just liberal judges who reject the popular meaning of activism.
Thanks, Professor, for your comment. I’ll agree that liability exposure and criminal procedure cases often come to the fore, although I think separation of powers can also play an important role in galvanizing opinion leaders to pay attention to a case (for instance, Dairyland Greyhound and Ferdon). Moreover, the Court could step into some important social issues in the near future (for instance, the WI Marriage Amdt) that could gain major public attention.
Second, let me direct all our readers to one of the best passages from last year’s Wisconsin Supreme Court, Justice Prosser’s concurrence in the second Action Wisconsin decision, 2008 WI 110, 62-63.
I appreciate Mr. Foley’s extended disquisition on the facts and circumstances surrounding Picotte. I cited it only to attribute the “image of justice” phrase to its originating source.
I also attended the event with CJ Abrahamson and J O’Connor, which was certainly a special honor for our law school. And in fact CJ Abrahamson has given the “activism is subjective” line many times. J O’Connor’s concern with the activism attack, I believe, is that she perceives it as an attack on “judicial independence,” a concept both Abrahamson and O’Connor have elevated to sacred status. Of course, the problem is that in many instances the attack is leveled because the judges have become independent of the text of the law before them, and have acted independent of the political branches to make up what the judges believe is a better law.
Thanks for your response, Daniel. A couple of quick points.
First, Ferdon is a personal injury case, of course, although like all cases it can be classified in other ways as well.
Second, Justice Prosser notes in the paragraphs you cite that judicial innovations that have the effect of greatly benefiting one interest group while seriously damaging another will naturally politicize judicial elections. In the personal injury area, the Wisconsin Supreme Court has at times been innovative in restricting claims. For example, it has aggressively embraced the economic loss doctrine. (Professor Ralph Anzivino notes: “[T]he economic loss doctrine has been greatly expanded by the Wisconsin Supreme Court. Wisconsin now has one of the broadest coverages in the United States.” 90 Marq. L. Rev. 921, 930.) I must also note that the Wisconsin court has been innovative in expanding personal injury claims, such as in striking down in Ferdon the statutory caps for non-economic harm in medical malpractice cases.
These examples demonstrate to me (1) the “conservative” and “liberal” analyses at work on the Wisconsin Supreme Court (2) that those analyses are more readily explainable in Justice Prosser’s terms of “politicization” than in an interpretive theory grounded in some notion of what “activist” means.