California's Supreme Court decision today is a cautionary reminder of why judicial appointments and elections matter.
Elections do matter.
But in California, the constitution says what the Supreme Court says it does. And the court’s majority was not constrained by notions of judicial modesty.
Which brings us back to Wisconsin.
In 2006, Wisconsin voters approved a constitutional ban on gay marriage, despite claims from Governor Doyle and others than the measure was unnecessary because statutory bans (like California’s) were in place.
But even with the constitutional ban, it is not hard to imagine that Wisconsin’s own high court might have handed down a California-type ruling, if incumbent Louis Butler had been re-elected this spring. (It could have found a procedural defect in the wording of the constitutional amendment; or invalidated the amendment on federal constitutional grounds.)
Admittedly, given the constitutional provision, the Wisconsin court would have had a higher hurdle than the California Court.
But our court has been nothing if not creative in its jurisprudence. With Butler on the court, the liberal majority had moved hard to the left, aggressively ignoring precedent and substituting their judgment for legislative decisions and acting as a “super-legislature.” On issues ranging from crime to tort litigation, to constitutional interpretation, the court’s sweeping departures from past practice drew national attention.