Judge Scudder Discusses “Resorting to Courts” in an Exemplary Hallows Lecture

Honorable Michael Y. ScudderThe Hon. Michael Y. Scudder, judge of the U.S. Court of Appeals for the Seventh Circuit, delivered this year’s Hallows Lecture, yesterday evening, to more than 200 individuals in Eckstein Hall’s Lubar Center. The lecture was exemplary.

The E. Harold Hallows Lecture is an annual highlight at Marquette University Law School. Most often delivered by a judge, the lecture is an opportunity to welcome into our community an accomplished individual from whom all of us interested in the law—students, faculty, other judges, lawyers, and all manner of interested individuals—might learn.

This was not Judge Scudder’s first trip to Marquette Law School, as he presided at the Jenkins Honors Moot Court Finals in 2023 (his similar service in 2021, during the COVID era, having been undertaken remotely by Teams). The judge keeps close to law schools, it would seem—for example, teaching national security law at the University of Chicago Law School and advanced federal jurisdiction at the Northwestern University Pritzker School of Law. Judge Scudder’s interest in legal education, especially in the Seventh Circuit’s region of Wisconsin, Illinois, and Indiana, is impressive and inspiring more generally.

Judge Scudder’s Hallows Lecture was titled “Resorting to Courts: Article III Standing as the Guardian of Free Speech & Democratic Self-Governance.” It proceeds in two main parts.

The first half explains and defends the standing requirement in federal courts. The judge describes the precept’s basis in the “Cases” or “Controversies” requirement of Article III of the Constitution, defends it as a structural limitation on the exercise of judicial power, yet acknowledges the ideological lens through which many individuals seem to view standing issues. The lecture offers a defense of the cases and a strong, institutions-based justification of the concept.

The lecture’s second half explores the relationship between the Case or Controversy requirement and free speech. It emphasizes that the standing requirement—particularly by disfavoring pre-enforcement facial challenges to government policies on very broad grounds—appropriately encourages people to hash out their differences in forums envisioned and intended as policy-setting. This half laments the echo chambers into which many individuals have placed themselves in our society and hopes that more open, respectful, and constructive dialogue, outside of courts, can occur to sort out the “cultural” issues and policies needing resolution at all levels of government.

Here’s a flavor:

. . . . This is how Article III’s limitation on the exercise of judicial power leaves policymaking, and the difficult line drawing it often entails, to the exercise of free speech. Speaking up, objecting, and sharing perspectives with those who differ from us is how we understand, persuade, and, often, find common ground where agreement seems beyond reach.

If that framing is too idealistic in today’s times, I would hope skeptics would at least recognize that the alternative—permitting very difficult legal questions to come to federal court based only on a showing of a genuine worry—casts a vote of little confidence in the role speech can play in finding solutions, or perhaps tolerable compromises, to some of the most divisive questions of our day. And even if these culture war lawsuits should not be viewed as a vote of confidence in federal courts as the ultimate decision makers, they put great pressure on principles of restraint designed to allow democratic processes—whether at the national or local level—to offer answers and outlets for persuasion and compromise in the first instance.

Our constitutional design envisions constitutional answers coming in slower-paced increments than contemplated by pre-enforcement facial challenges like the one Parents Protecting Our Children lodged against the Eau Claire policy. It is not happenstance that the architect who designed the Supreme Court, Cass Gilbert, thought the tortoise an appropriate decorative and symbolic feature for the building’s design. In the same way tortoises move slowly, sometimes the law develops best when principles, doctrines, and answers come with time and, I might add, with more speech and dialogue helping to bridge social divides. Pre-enforcement facial challenges, however, often result in expansive injunctions that apply in one fell swoop—the sort of forward-looking policymaking that is best left to the more democratic branches.

Judge Scudder’s lecture was outstanding, even beyond its timeliness. While versions of it will appear in the fall Marquette Law Review and Marquette Lawyer, one can watch the lecture here or read a working copy of it here.

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Remembering Justice David T. Prosser, Jr.

David T. Prosser, Jr., a prominent figure in Wisconsin for the last forty-five years, held many significant positions during his distinguished career of public service: Wisconsin Supreme Court Justice, Speaker of the Wisconsin Assembly, Commissioner of the Wisconsin Tax Appeals Commission, and Outagamie County District Attorney, among others. But after he passed away this month at the age of 81, those who gathered to celebrate his life remembered him not only as a hard worker and skilled jurist but also—and perhaps more importantly—as a trusted mentor, loyal friend, and devoted family member.

In my personal experience, Justice Prosser certainly deserved those accolades. I served as his law clerk during the Wisconsin Supreme Court’s 2004-2005 term. That year we worked elbow to elbow, and I observed firsthand his skill as a writer, his work ethic, and his wry wit. Upon arriving at the state capitol in early August 2004, fresh out of Marquette Law School, I was as nervous as could be. Justice Prosser immediately put me at ease, and although I made many mistakes, he never lost patience with me. That year on the Court was perhaps the greatest experience of my professional career and I often reflect on those times. I certainly would not be where I am today without him.

As with many of those whose lives he touched, Justice Prosser always had my best interests in mind. He kept in touch with me and followed my career even long after I worked for him. A few years after my clerkship had ended, I needed a letter of recommendation in a short time frame during a busy period at the court. He agreed to write on my behalf. After apologizing for the quick turnaround, I asked when he might be able to get it in the mail—to which he answered, “we’ll see.” The next evening, there was a knock at my door. There on my doorstep was Justice Prosser, with the letter in hand. He had not only written it in less than a day, but also driven two hours each way to ensure it arrived on time. I invited him in, but he declined, saying, “I’m sure you have better things to do than have dinner with me.” His humility was one of his defining features. My experience was not unique. Those gathered at his funeral told many stories of a similar nature, explaining how Justice Prosser dropped everything to help a friend or family member in need.

Justice Prosser was a great friend of Marquette Law School, often appearing at events, lectures, dinners, and the like. Many of his clerks were Marquette lawyers, and they went on to successful careers as judges and lawyers in a variety of practice settings. He was featured in the Summer 2017 edition of Marquette Lawyer magazine, highlighting how he enjoyed hiring law clerks from Marquette and how much they helped him.

The previous year, in an interview with the Wisconsin State Bar on the occasion of his retirement from the Wisconsin Supreme Court in 2016, Justice Prosser said he wanted to be remembered as an important decision-maker, an independent thinker, and a storyteller. He was certainly all those things, but also much more to those of us who had the good fortune to know him. As we continue our journeys without him, we honor the person he was and the life he led. Rest in peace, Justice Prosser. You will be missed.

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Judicial Rotation in the Milwaukee County Circuit Court

Milwaukee County CourthouseI was asked recently by a reporter about judicial rotation in the Milwaukee County Circuit Court (Judicial Rotation Explained by an Insider). It brought back any number of memories—from my first rotation as a new judge to the rotation decisions that, years later, I was required to make as chief judge. In my new role on the Marquette Law School faculty, I hope in this blog post to provide some additional insight on both the practice and theory of judicial rotation.

In 2004, Chief Judge Michael P. Sullivan assigned me, a newly appointed circuit court judge, to the children’s division. I was told that new judges were assigned either there or to the criminal misdemeanor division. Chief Judge Sullivan informed me that I would rotate to another division in three to four years, based on the local rules or practices.

When it came time to rotate to another division, I, along with several other colleagues, tried to convince the new chief judge, Kitty Brennan, that judges assigned to children’s court should have the option of permanently remaining in the division or, at least, staying much longer than the four-year maximum. We were convinced that judicial specialization—having judges who are permanently assigned and dedicated to children’s court—would ensure the making of consistent decisions in the best interests of children, families, and public safety. We even had national data to support our request.

Chief Judge Brennan was not convinced. Focusing on the local rules, she gave a perspective on the virtues of judicial rotation. She believed that it was not only good to experience other assignments but to meet new lawyers and litigants. Even so, she exercised her discretion, and allowed me to remain at children’s court for one more year to finish a project—an unprecedented fifth year.

Thereafter, Judge Jeffrey Kremers was appointed chief by the Wisconsin Supreme Court. He assigned me to the misdemeanor division. where I presided over misdemeanor and felony domestic violence cases. The domestic violence courts were considered problem-solving courts. It was also an assignment where judges would preside over many jury trials, hear countless stories of intimate partner violence and child abuse, and repeatedly see graphic pictures of harm. I had discovered another reason for rotation, which I would also learn to be true in homicide and sexual assault assignments: Rotating judges to other “courts” (technically, other divisions in the same court) could be a salutary and welcomed change—not only for judges but for lawyers and litigants as well, I might add.

Four years later, I asked to rotate back to children’s court. I brought with me my better-honed judicial trial skills, knowledge of intimate partner violence and child abuse, and an understanding of the impact of trauma. I was more experienced this time and able to make more refined decisions for families. This broader range of knowledge and skills made me a better judge. It also supported my problem-solving court work in what we called Family Drug Treatment Court and Healthy Infant Court.
My final rotation was to the civil division. Truth be told, I didn’t ask to stay in the children’s division as I had requested so many years ago. I accepted Chief Judge Maxine White’s decision and her reasoning. In the civil division, I would be exposed to different legal issues, meet new lawyers, and use my skills in conflict resolution. It also turned out to help prepare me for my own later role as chief judge.
It was one thing to be rotated in and out of divisions but quite another thing to make rotation decisions. I became chief judge in February of 2020. Along with navigating the pandemic, I had to make significant decisions about rotation. Wisconsin Supreme Court Rule 70.23 addresses the assignment of circuit judges. Subsection (3) states:

The chief judge of each judicial administrative district shall design a plan for the rotation of judicial assignments in multijudge circuits within the district. The plan for each district shall be on file with and have the approval of the chief justice or his or her designee and shall be supervised and maintained by the chief judge as part of the permanent scheme of judicial administration. In designing a rotation plan, the chief judge shall do all of the following: (a) Equalize the workload in an equitable manner considering any special circumstances in each circuit. (b) Assure general jurisdiction availability and competence of all judges in the circuit.

The Milwaukee County Circuit Court rotation plan is published in Local Rule 146. It weighs heavily in favor of giving relatively senior judges their choice of assignment when it is their turn to rotate. It limits service in a division to one four-year term, which means that at least one-quarter of the 47 judges in Milwaukee rotate annually, usually on August 1. There also are “interim” rotations. These occur when there is a vacancy after a judge retires or leaves the bench for other reasons that do not coincide with the annual rotation. The local rule prescribes the process for interim rotations as well. As you can imagine, when a judge leaves, it necessarily means other judges will likely have to move.

About four months before annual rotation, the chief judge asks those who have been in an assignment for three and four years to list their top three choices for rotation. Those choices include the divisions of children’s, family, criminal misdemeanor, criminal felony, and civil. There are also intra-division assignments that need to be taken into consideration. For instance, rotating to the felony division could mean an assignment to a general felony, drug treatment court, drugs, guns, or a homicide and sexual assault calendar.

As chief judge, I always met with my leadership team to make rotation decisions. As you can imagine, other judges, judicial staff, and even lawyers often weighed in, one way or another. Finalizing rotation was quite time-consuming and complicated. I was always grateful for the rotating judge who told me to assign him or her “wherever you need me the most.” I tried to make sure that judges had the skills, stamina, and competencies necessary for their assignments. I was also mindful of judges’ (and their staff’s) exposure to significant trauma stories, such as listening to litigants recount their victimization, looking at videos of exploited children, or seeing the aftermath of car crashes. And, as with my predecessors as chief judge, I exercised discretion to make rotation and interim vacancy assignments that were in the best interests of the Milwaukee County Circuit Court.

Judicial rotation has been around for more than 40 years. It gives judges in Milwaukee County an opportunity to experience different divisions, meet a wide variety of lawyers, and build different skills sets. It can also be a chance to take a much-needed break from presiding over particular kinds of difficult cases. Up-to-date Chief Judge Directives, including those related to rotation, can be found here.

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