The nation's eyes are focused on the nomination of Judge Amy Coney Barrett to the United States Supreme Court and how she can impact the judiciary for generations. While there's no questioning her importance, state courts can also wield significant power to shape people's lives. There's no bigger reminder of this than the short but remarkable tenure of Wisconsin Supreme Court Justice Dan Kelly.
On July 31, 2020, Justice Kelly left the Wisconsin Supreme Court, having lost to Dane County Judge Jill Karofsky in April’s Wisconsin State Supreme Court election. Justice Kelly’s departure from the high court is a bitter pill for many Wisconsinites to swallow, especially with the United States Supreme Court, under Chief Justice John Roberts, seemingly adrift. However, his tenure on the court is a lesson to all on how state courts can protect freedom and liberty and the importance of state justices who are able to articulate a judicial philosophy grounded in the Constitution as originally understood.
In 2016, respected litigator Dan Kelly, who was the Milwaukee Lawyers’ chapter president of the Federalist Society, was appointed to the highest court in the state by former Wisconsin Governor Scott Walker to fill a vacancy left by the retiring Justice David Prosser.
Reflecting on the appointment, Mr. Walker remarked, “Justice Kelly had the kind of intellectual impact on the Wisconsin Supreme Court that Justice Antonin Scalia had on the United States Supreme Court. He is brilliant and I was honored to appoint him to the bench.”
A comparison to Mr. Scalia is the highest praise, but for Mr. Kelly, it is warranted, both in philosophy and demeanor. Like the late Mr. Scalia, Mr. Kelly was vigorous yet polite, clear yet concise in his defense of the Constitution. He did not hesitate to take on the biggest cases, and by allowing the law to dictate his decisions, his opinions preserved limited government, free markets, and constitutional rights for all.
“There can be no freedom without the rule of law,” Mr. Kelly explained to us. This aptly summarizes a series of landmark Wisconsin Supreme Court cases, authored by Mr. Kelly, that dramatically reined in the power of unelected bureaucrats by returning it back to the people and their elected representatives, all as required by our constitution.
In Tetra Tech v. Department of Revenue, the Court decided to end its “practice of deferring to administrative agencies’ conclusions of law.” Justice Kelly opined that “allowing an administrative agency to authoritatively interpret the law raises the possibility that our deference doctrine has allowed some part of the state’s judicial power to take up residence in the executive branch of government.” He said that because the Court must “be assiduous in patrolling the borders between the branches,” it was the Court's responsibility to return "the core judicial power ceded by [the] deference doctrine" to its "constitutionally-assigned residence" — the judiciary.
Importantly, Justice Kelly made clear the case was about much more than ending agency deference, adding: “This is not just a practical matter of efficient and effective government. We maintain this separation because it provides structural protection against depredations on our liberties.”
His constitutional principles of separation of powers would not waver even in more publicized cases. Last spring, in a decision ending Governor Tony Evers’ stay-at-home order, Justice Kelly relied heavily on Tetra Tech to again explain the significance of the separation of powers. He also explained why it is so important that the judiciary remain faithful to the law as it exists, as opposed to what it might wish the law to be. This all-important limitation on the courts, he said, derives from the relationship between the government and the governed. He explained that because “the power to create and maintain governments belongs to the people,” our constitution recognizes that the people of Wisconsin “merely loan their authority to the government, they do not cede it.”
Mr. Kelly was fond of reminding those who cared that political power is always nothing more than a loan from the governed. It is not, and cannot be, a permanent grant.
But he wasn’t just focused on the delicate balance of power among the three branches of government. It is no secret during Mr. Walker’s years, activists utilized multiple avenues of attack to undermine his reforms at the local level. In one example, Mr. Walker and the Republican majorities passed concealed carry, becoming the 49th state to do so. In a disregard for the rule of law, the City of Madison tried to undermine concealed carry by increasing regulations. Mr. Kelly would have none of that, authoring the majority decision that prohibited Madison from gutting legislator’s wishes for concealed carry.
In the early stages of “cancel culture,” Marquette University tried to fire political science professor John McAdams because he authored a blog post criticizing a graduate assistant who refused to allow any debate in her class on same sex marriage. Our former employer, WILL, took this case to the State Supreme Court, where Kelly authored a landmark free speech decision in Wisconsin, protecting Professor McAdams right to academic free speech.
These cases represent landmark shifts in Wisconsin jurisprudence. While his detractors argue Mr. Kelly authored politically-motivated opinions, in reality these opinions did nothing but honor the mandates of our first law — our constitution. The effect of honoring those mandates was often a transfer of power away from government bureaucracy and back to the people and their representatives where the law said it belonged.
"Serving the people of Wisconsin on their Supreme Court has been the honor of a lifetime," Mr. Kelly concluded. But we can only hope that Wisconsinites realize what a horrible mistake it was to remove Justice Kelly from the Supreme Court. Knowing Dan, he’d likely be ready and willing to answer the call in defense of first principles should the opportunity arise.