Where is Wisconsins Court Headed?
By Rick Esenberg There are few terms more abused than judicial activism and judicial restraint. Much of the public conversation regarding these terms presumes either a sharp dichotomy (activist judges do whatever they want, while restraintists simply follow clear legal instructions) or a complete absence of standards (all judges are activists). Even the metaphors get tricky. During his confirmation hearing, Chief Justice John Roberts told the Senate Judiciary Committee that [j]udges are like umpires. Umpires don’t make the rules; they apply them . . . .[i] Some of us, however, remember the story of three umpires (perhaps they were at a bar) who had very different views of their roles. The first umpire claimed to call them as he sees them. The second says that he calls them as they are. The thirdwho may have held down a day job as a law professor at Yalewent one step further. They are, he said, nothing until I call them. In attempting to understand judicial restraint, the first umpire h
