First Among Equals

The U.S. Court of Appeals for the D.C. Circuit is widely seen as the “first among equals” of the U.S. circuit courts. It is the most prominent, it deals with the biggest cases, and its opinions are most highly regarded. This need not necessarily be the case. During the time that Learned Hand (left) and his cousin Augustus sat on the Second Circuit, for instance, the Second Circuit was the most prominent in the land. When the U.S. Supreme Court failed to assemble a quorum to hear an important antitrust case, the Court chose to certify the case to a panel of the Second Circuit for final resolution. Learned Hand authored a significant antitrust decision for the panel in the case (148 F.2d 416), and their power of mandamus was later upheld by the Supreme Court (334 U.S. 258). I have heard it argued that the Ninth Circuit is on the rise to the point where it may soon displace the D.C. Circuit as the most prominent court below the Supreme Court.

I mention all of this to ask the simple question, prompted by yesterday’s indictment of Governor Blagojevich: Is the Northern District of Illinois the new Southern District of New York? Traditionally, SDNY, as it’s known in the case cites, has been the most prominent of the federal district courts. For instance, Rudy Giuliani left his post as the associate attorney general, number three at Department of Justice, to become U.S. Attorney for the Southern District of New York.

But with Patrick Fitzgerald running the Northern District of Illinois, that seems to be the home of many major cases. 

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Does “Judicial Activist” Mean Something?

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.

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Another SCR Bites the Dust?

In Duwe v. Alexander, prominent First Amendment attorney James Bopp won a federal district court decision (PDF) striking down SCR 60.06(3)(b), part of the Wisconsin Code of Judicial Ethics. Bopp convinced Judge Shabaz that the Code’s section prohibiting judges from making “pledges, promises, or commitments” interfered with their free speech rights under Republican Party of Minnesota v. White, 536 U.S. 765 (2002).

Bopp is currently pursuing another free speech claim in Siefert v. Alexander, again in the Western District federal court (PDF). Here, Bopp represents a Milwaukee County judge who is challenging three sections of the Code that prohibit judges from belonging to or participating in political parties.

He is also counsel to Justice Michael Gableman in the disciplinary proceedings regarding Gableman’s campaign TV ad. In the reply to the Judicial Commission’s charges (PDF), he affirmatively asserts that SCR 60.06(3)(2), the “misrepresentations” clause, is an unconstitutional impingement on free speech.

In other words, Bopp’s litigation in Wisconsin has successfully taken down one judicial ethics code section, and four more are under challenge.

But Bopp is litigating outside Wisconsin as well, and a recent decision Bopp won in a federal court in Kansas may result in new litigation in Wisconsin. Yesterday, Bopp issued a release hailing Judge Julie A. Robinson’s decision in Yost v. Stout, which struck down the Kansas Judicial Code’s ban on the direct solicitation of campaign donations by judicial candidates. Wisconsin SCR 60.06(4) says that “A judge, candidate for judicial office, or judge-elect shall not personally solicit or accept campaign contributions.” Under the federal district court’s decision in Kansas, it seems clear that 60.06(4) is unconstitutional. Will a Wisconsin judge or candidate soon challenge it as such?

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