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Special Report

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THAT LAST WARNING ALSO SERVED as one of the points stressed by Judge Diane Sykes of the U.S. Seventh Circuit of Appeals, in a March 7 speech at Marquette University -- namely, that judges ought to observe "the prudential institutional caution that counsels against imposing broad-brush judicial solutions to difficult social problems."

It is for good reason that young Judge Sykes (born in 1957) is on many handicappers' short lists for the next Supreme Court opening. Her speech, a critique of the most recent term of the Wisconsin Supreme Court (of which she was a member until joining the federal appellate court in 2004), was a model of clarity, sound reasoning, and correct (humble, textualist) judicial principle.

Sykes made a compelling case that the Wisconsin high court in 2004-05 has, not just in results but in conventions of legal reasoning, made a radical (and dangerous) shift away from accepted norms. The cases, involving tort law and rules of criminal evidence and interrogation procedures, were quite important in themselves. For our purposes, though, what was most noteworthy about the Sykes speech was that the principles she espoused and defended are so equally applicable to federal courts as well as state ones, and that her explanations thereof were so clear and direct.

Thus it was a pleasure to read her text saying that "the court's responsibility of judicial review is not a warrant to displace legislative judgments." And: "The terms 'modesty' and 'restraint' -- the watchwords of today's judicial mainstream -- seem to be missing from the Wisconsin Supreme Court's current vocabulary.... The court has also manifested a cavalier, almost dismissive attitude toward the sources of legal interpretation generally thought to be most authoritative: the text, structure, and history of the constitution and laws, and the court's own precedents."

And Sykes' remarks were full of gems of the "gotcha" variety, such as when she criticized the court's majority for straining too hard to show that the Legislature's judgment did not proceed from a "rational basis": "It takes the court seventy-nine paragraphs to get there. You'd think if a law were truly irrational, it would be simpler to explain why."

Inherent in the themes of the speeches by both Judge Jones and Judge Sykes is the ideal that a good judge is the servant of the law, not its master. Judges such as Sandra Day O'Connor who ignore those warnings deserve to get their feelings hurt, and their wings clipped, by politicians who criticize the judges' hubris. As Sykes said, when a court ignores the "long accepted principles that normally operate as constraints on the court's use of its power," it is only right that critics "sit up and take notice, and question whether that power has been exercised judiciously."

If more judges were like Jones and Sykes, lack of judiciousness would never be an issue.

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Education, Mainstream Media, Constitution, Law, Supreme Court