The apolitical campaign of Justice louis Butler
                               Making Black History
By Jonathan Gramling

    Justice Louis Butler, the first African American to serve on the Wisconsin Supreme Court when Governor James
Doyle appointed him to the bench in September 2004, is not a stodgy justice disconnected from people. We sat in the
Starbucks on the Capitol Square in Madison for an interview and several people recognized him and said hello.
He greeted them warmly and thanked them when they told him of their support. The warmth is nothing forced.
    Butler also has a love for the rule of law. Later on when we enter the Supreme Court chambers and later on his office, he takes on an almost humble air, as if
the traditions of the Supreme Court and the history of the chamber make him feel relatively insignificant in the grand scheme of things. After we leave the
Supreme Court’s courtroom where the members hear oral arguments and where we conducted a photo taking session — Butler has already checked to make sure
this was within the campaign laws — Butler is unable to set the lighting the way it was before we arrived and he makes sure that the proper people are notified so
that the lighting can be corrected. Clearly, he does not view himself above any of the rules, no matter how small. Butler also clearly understands that he
operates beneath a higher power, the laws of the land.
    While Butler’s detractors have labeled him as a ‘liberal’ justice bent on expanding the power of the Wisconsin Supreme Court so that it is legislating from the
bench, Butler doesn’t see his position as a justice in those terms. “When I look at a case, first I break down the facts,” Butler said. “What is this case all about? I’m
not looking at big picture issues. I’m supposed to write small. That’s how I see my job. I write small, solve the case and I’m done. So when I look at those facts,
how do I apply the law to those facts? I start with the U.S. Constitution, the supreme law of the land. Everything has to be constitutional or it doesn’t work. Then
we go to the Wisconsin Constitution. And I look at how that applies to a given set of facts. I look at matters of state policy, that’s from the legislature. The
legislature sets policy. They do it when they pass laws. Our job is to interpret and to apply them. I do so very strictly. I believe in ‘This is what you wrote and this is
what you are going to get.’”
    In addition to that hierarchy of formally passed rules of law, there are also issue areas where the law is silent. Then common law, a practice dating back to
the signing of the Magna Carta in England back in 1215, takes precedence. “That’s judge-made law that we apply generally in the civil law area, where the
courts have over hundreds of years filled in the gaps when there are no laws on the books,” Butler said. “And then we have our body of precedents, which is to
build stability in the law. We always try to follow the law. And if you are going to make the change, you had better understand what that change is going to do.
The court over years and years and years has solved problems. You don’t want to with one case recreate problems that have been solved in 150 years of case
law. So you have to understand where the rule came from, how it’s going to be applied, whether you are changing anything and if you are changing anything,
is it good or bad.”
    As Butler talks about the law, his idealism shines through. He truly believes in the abstract values that guide the rule of law. “The whole end result, if we are
doing our job right, is supposed to be justice,” Butler emphasized. “We are courts of justice. And we should make sure that we try to apply justice in a given fact
situation. Now my job in interpreting and applying the law is to follow the law. That means sometimes corporations win and sometimes the small guy wins. The
focus is not on who wins. The focus is not on result. The focus is on are we applying the law and is justice being done. And justice means sometimes you win
and sometimes you lose. No one is going to win 100 percent of the time.”
    Currently, Butler is running for election to the Wisconsin Supreme Court. While he was the first African American to sit on the bench — having been
appointed to finish the term of Diane Sykes who was appointed to a federal judgeship — he has yet to become the first African American to be elected to
the bench.
    While Butler is aware of the distinction — although it is an honor to hold the distinction, it makes him sad to think that ‘firsts’ are still having to be achieved in
the 21st century — it is his desire that his race does not become a criteria for people to make their voting decisions. “I think people should vote for me because I
am a good justice on an outstanding court,” Butler said. “And I do think we have an outstanding court. We don’t always get along. That’s the beauty and the
hassle of being a collegial decision-making body. But that’s the reason why we have seven justices. If we all thought the same, you would only need one. The
goal is not to have seven clones. The goal is to have seven people with different legal backgrounds, different personal backgrounds, and different life
experiences who represent all of the people of Wisconsin sitting at the decision - making table, take their views of the facts and apply their approach to the
law to those facts to come up with a decision that will hopefully give all of the citizens in the state justice. That is what we do on the Supreme Court level.
That is the thing that I enjoy most about being on the Court. And I love that collegial decision-making process even when it gets a bit testy, which sometimes it
does.”
    Butler is proud of his record on the Supreme Court. He is a hard-working justice who almost revels at the demanding nature of his job. “We’re in full session,”
Butler said, even though he is in the height of his campaign. “I spend evenings, a lot of times, reading the briefs and the petitions for review. I have four stacks of
petitions that have to be voted on February 20. I have to read all of the petitions and materials and the memos and I have to decide which cases I want to take.
As you know, it takes three members of the court to accept a petition for review and four members of the court to accept anything else that we take. I have to
make those decisions. We have eight oral arguments that I’m getting ready to sit on that we have to read. Now I’ve got a box of oral arguments that I have taken
along. I’ve read one already. So I have eight other oral arguments to get ready for. We have rules hearings coming up. I have to get ready for those. I do it at
night. I do it on weekends. I do it whenever I’m in the car. I do the work whenever I have the opportunity.”
    And the nature of Butler’s job demands that he still give it 110 percent even though he is in an election fight. He must remain fully engaged as a Supreme
Court justice. “There is no one else who can pick up the slack for my duties,” Butler emphasized. “It would be a tremendous issue and a negative if I would push
the work of the court off on my colleagues and tell them I don’t have time to get this or do that. I can’t tell them that they are on their own. I have to be just as
prepared as every other member of the court when we sit down and listen to a case. And if I don’t do that, I’m not holding up my end.”
    “And we now have new internal deadlines for circulating opinions so that we can get them out to the public as quickly as possible,” Butler continued.
“So we all have to meet those deadlines. We’re in there drafting. We all have majority opinions to draft. In addition to that, if I happen to disagree with my
colleagues on any cases, it’s my responsibility to draft a concurrence or a dissent. You can’t tie up the litigants. You can’t make them wait for a decision because
I am busy. So I have to go out and I have to hold up my end and get the work of the court done. I have a responsibility to the people of Wisconsin. The court
comes first. The court has come first. The court will continue to come first.”

Next issue: The changing face of Supreme Court races

  

  
Justice Louis Butler, sitting in his
Supreme Court office in the State
Capitol, was appointed by Gov. james
Doyle in 2004 and is up for election to
the seat on April 1.