Daniel Kelly, a candidate for the Wisconsin Supreme Court in the April 4 election, wants Wisconsinites to believe that he is a totally objective, neutral judge, who applies the law without ever considering the result he personally would like to see. This tired rhetoric typically hides hyperconservative judicial activism, and Kelly is no exception.
Kelly echoes the claim of Supreme Court Chief Justice John Roberts that a justice’s role is “calling balls and strikes.” As Kelly tells it, “I will apply the law to the extent that is consistent with the Constitution without regard to my personal values or my personal politics.” He calls himself a “constitutional conservative” and repeatedly states that only the legislature should determine policy, while the judiciary’s role is solely to apply the law.
The draw of this approach is clear: We all want impartial judges who will honestly apply the law before them. The problem is that this perspective is most often specious. The game Roberts was playing, which Kelly and many others have emulated, is this: They label the result they prefer as “applying the law,” based on whatever cherry-picked evidence they have of the text, history or intent of the law at issue, while simultaneously labeling the result they don’t prefer as “legislating from the bench.” To follow Roberts’ analogy, it’s like an umpire who calls every pitch from one team a strike, and every pitch from the other team a ball, explaining that if you don’t like it you should blame the strike zone.
But with baseball, you can play back the tape and demonstrate an umpire’s bias with clear data. The law, on the other hand, is much more nuanced and complicated. The cases that appear before a state supreme court are typically such a tangle of facts, precedent and legal doctrine that clever jurists like Roberts and Kelly are able to confuse matters enough for nonlawyers (and many lawyers) to just throw their hands up and bemoan how messy the law is.
So how do we tell the difference between a genuinely honest jurist and someone who is secretly oriented toward preordained results? We can only guess with newcomers to the bench, of course, but with Daniel Kelly we have a record. He previously served on the Wisconsin Supreme Court from 2016 to 2020. The main two questions are: First, whether he seems to favor one type of result, regardless of the law, and, second, whether his judicial colleagues have agreed that he honestly applies the law, regardless of the result.
In a 2017 case authored by Kelly, two fellow justices explained how he “slips into legislative mode and rewrites the statute the way [he] wishes the Legislature would have written it” in order to reach his desired result that the city of Madison was not allowed to prohibit weapons on buses. The circuit court and appellate court both agreed that a state statute did not preempt the city’s rule, but Kelly read the statute differently in order to strike down a “liberal” rule.
In 2019, Kelly authored an opinion allowing Waukesha County to extend the involuntary commitment of an individual, including forcing the person to take powerful psychotropic drugs, even though the county failed to notify that person prior to the hearing. Despite Kelly’s claims of following the text of the law, in this instance the text was clear: The county was required to notify “the subject individual and his or her counsel of the time and place of final hearing.” The law plainly states that the individual must be personally notified before the government can forcefully detain and give the person potentially mind-altering psychotropics. But Kelly, perhaps influenced by the fact that this individual was experiencing homelessness at the time, hand-waved his way past this language to his desired result.
In another 2019 case, Kelly’s opinion was described as “reach[ing] its conclusion only by disregarding long-held principles of insurance policy interpretation — which we call precedent.” Kelly may respond that these critiques come from “liberal” justices, so perhaps there is some bias involved. But his fellow conservative justices made similar claims throughout Kelly’s short tenure on the bench.
In 2017, now Chief Justice Annette Ziegler, herself a conservative, called out Kelly for legislating from the bench. Ziegler said that Kelly “construct[ed] a constitutional violation where none exists in order to avoid a bad outcome.” Justice Patience Roggensack, whose seat Kelly seeks to fill and herself a staunch conservative, ripped apart a 2019 Kelly opinion, claiming it “transplants quotes into an entirely new context” to reach Kelly’s desired result. Regarding the same opinion, Ziegler damningly noted that Kelly “repeatedly and purposefully” misstated Ziegler’s position “rather than trying to meet [it] with reasoned argument,” a tactic Ziegler described as “intentionally misleading.”
Roggensack and Ziegler described another Kelly opinion as providing “no support for” its assertions, noting that Kelly “reache[d] for the Constitution unnecessarily,” a criticism even ultraconservative Justice Michael Gableman shared. Ziegler noted that Kelly ignored legislatively defined terms “for the sake of convenience.” Roggensack and Ziegler most colorfully slammed Kelly’s judicial activism in 2019, accusing him of improperly pulling an obscure doctrine called “structural error” out of a hat as a “legal rabbit,” reaching Kelly’s desired conclusion with “no analysis of the law.” Instead, “ipse dixit” (because I said so) Kelly “discovered a new type of structural error.” This may sound anodyne to a nonlawyer, but from a like-minded justice, it is a savage takedown.
At the very least, these disagreements show the lie that supreme court justices have a clear choice between following the law or reaching a desired outcome, as Kelly loves to imply. To the contrary, the law is messy and an honest justice or judge will acknowledge this. When a judicial candidate pretends that they will always set aside the real-world results of their opinions and will only “call balls and strikes,” you know that the opposite is likely true and you actually have a judicial activist on your hands. Kelly’s short record on the court confirms this.
Rather than being bamboozled by Kelly’s dishonest rhetoric, Wisconsin voters must acknowledge his judicial activism and ask themselves where he would take the court. Kelly was reportedly involved in attempts to undermine American democracy in 2020, has vocally opposed same-sex marriage for years and has close ties to anti-abortion groups. It doesn’t take a legal scholar to predict how Kelly will see the law on these issues.
Kelly knows that this is the game he’s playing, and he expects his colleagues to do the same. After conservative Justice Brian Hagedorn refused to help Trump steal the 2020 election, Kelly called Hagedorn “supremely unreliable,” adding that “we were a little bit surprised at how he turned out.” Hagedorn shot back by insisting he was simply applying the law without bias toward the result, and (unlike Kelly) Hagedorn’s record makes this seem plausible.
For the sake of women, LGBTQ individuals — and democracy itself — Wisconsinites must show up and vote for Judge Janet Protasiewicz to keep Kelly off the court.
ABOUT THE AUTHOR
Ryan Jayne received a B.A. in philosophy from the University of Wisconsin-Milwaukee Honors College in 2007. After graduating, Ryan taught piano and chess lessons while working as a financial advisor until 2012, when he began law school at Lewis & Clark in Portland, Oregon. In law school he focused on intellectual property and animal law, serving as an associate editor for the Animal Law Review at Lewis & Clark and co-founding the Pacific Northwest’s first Secular Legal Society. Ryan graduated cum laude in 2015 and is now Senior Policy Counsel for FFRF Action Fund Inc.