appreciate the view. On the wall  above Butler's desk lies a portrait of U.S. Supreme Court Justice Thurgood Marshall, the first African American to sit on this nation's highest court. Butler is proud to be the first African American to sit on Wisconsin's highest court, but he is first and foremost a very busy Wisconsin Supreme Court Justice.
      Butler has one law clerk with whom he works very closely. Outside of the other six judges, his clerk is the only person he can discuss details of the cases with.  "You bounce around ideas and discuss issues," Butler said in an interview with The      Capital City Hues.  "Your clerk will often provide you with a draft of  written materials on an opinion. You work with them on that so you can put  together an opinion that meets the needs of the litigants and settles the law for the people of Wisconsin."
      However, Butler reserves the writing of his dissents and concurrences for himself because these are occasions when Butler can express best what's on his mind. "You're not just writing a dissent because you want to spit in the wind," Butler said.  "You're trying to convince your colleagues that your point of view is the correct point of view, if not today, then in an opinion in the future. So you do lay out the law. You do cite the legal authority to the best of your ability to try to convince the      other members of the court that this is what the law is. With dissents, what you have are legitimate disagreements on the law that are being aired out in writing. And if you think about it, it makes sense that you would have that."
      The Wisconsin Supreme Court is a discretionary court.  Unlike the circuit courts and courts of appeal, it chooses which cases to consider.  "We only take cases that have issues of statewide or national importance, where the law is unsettled, or there is a conflict  between the various districts and the Court of Appeals," Butler said.
      However, even though the justices have discretion in what they consider,  they have little discretion in how they consider it. They are bound by the U.S. Constitution, the Wisconsin Constitution, stare decisis -- past settled cases with applicable elements similar to the case being considered -- and common law, the history of cases having been settled by the Court. The justices are not theoretically free to decide based on their personal feelings on a subject.
      "We are very serious about issues of stare decisis," Butler said.  "There are times when the law will bend or move. Obviously, you have to take into account the changes in society, technology, and legal philosophy because those things happen. But the law is not designed to move swiftly or in response to the knee-jerk reaction of what is going on in today's world. It's designed to move slowly and over time. That's where stare decisis comes in."
      "Basically what you are doing is trying to interpret the constitution as it has been in the past and how you think it should be  applied in the future," Butler continued.  "You do that in the context of precedent. You do it in the context of decisions we are bound  by. The U.S. Supreme Court speaks out on matters of the U.S. Constitution and we're all subservient to that. When you are dealing with issues of the state constitution, we look at our precedent in that area as well and we try to interpret the constitution based on the facts before us, based on the history of interpretation over time. Stare decisis plays a huge role in that as well. You look at statutory interpretations. We're trying to interpret what the legislature did. It's hard to say what they intended because that is a fluid concept and different  individuals can say they intended this or intended that. What did the      legislature do? That';s how I try to view that and try to apply what the legislature did in interpreting and applying the law."
      When asked about the power of the court in making decisions, Butler became uncomfortable because he doesn';t look at what they do in terms of personal or professional power.  "Our job is to interpret and apply the law and to do so in a way that tries to produce justice for the litigants that come before us," Butler said.  "And we do that in the context of the Constitution and the statutes and common law. I wouldn't use the word 'power' to categorize what we do.  Certainly our decisions have an impact on the law and on the citizens of Wisconsin. But I wouldn't use the word 'power.'"
      Nonetheless, it isn't a mechanical process for the justices in making decisions; they aren't a computer that is fed data and then prints out a solution. They are seven individuals with seven different backgrounds and philosophies.  "We all bring something different to the court and that is a good thing," Butler emphasized.  "We're all a function of our history and what we've learned growing up. What it does is that it enables us to really represent the entire state through our backgrounds. It might get positions heard that otherwise may not have been    heard at the conference table. And I think that benefits each one of us in terms of making a decision that will affect the people of the state in a positive way. I feel that everything we do here impacts on every citizen in this state. So it's important for us to know what the decision is going to do, not just in terms of what the legal impact is, but also what the practical impact of the decision is. How does it affect the daily lives of some of the litigants who come before us? How does it affect the legal practice on a case by case basis? Is this something we really want to do or do we need to think about it?"
      The Court is a collegial body where it takes at least four votes to decide a case. The justices must work closely together. Butler is a very sociable individual. He can be seen going out to lunch when he is at the State Capitol with justices whom one  might assume he has opposite philosophies from. It is no accident that besides Thurgood Marshall, the U.S. Supreme Court justice Butler admires next is the late Justice William Brennan.  "I admire him, not so much for his judicial philosophy, as it was for his ability to build consensus and to do within the context of nine different personalities that were often at odds on certain difficult issues of their day," Butler said.  "Yet, he was able to work with the other justices to build consensus and build harmony on the court. That's something I greatly respect  and hope I can provide with my colleagues. Whether they will agree with that or not is a different story. But that's what I hope I bring to the court."
      On many levels, Butler revels in the disagreements and loves the interaction on the legal issues that are presented.  "It's all about working with your colleagues, trying to convince your colleagues your opinion is the correct one, or be convinced      by your colleagues that their point of view is the correct one," Butler said.  "We're tackling difficult issues. So relationships      mean a great deal. We have to be able to work together in a situation that is complex and often times difficult. You can imagine that we have seven  strong individuals with seven strong personalities who often times, each  one of us, will think their point of view is the prevailing one. Yet, we have to be able to put those together into a opinion that speaks for the court and advances the law for the state of Wisconsin. The fact that we are a collegial body says a lot. We have to be able to work together; otherwise I think the law suffers in the long run."
      While Butler rarely has the time to reflect on it, he is well aware of the impact his being the first African American justice can have on generations to come.  "I think back to that gumbo tasting contest in Milwaukee I was involved in a number of years ago with the late Judge Miller and Judge Stamper [two African American circuit court judges from Milwaukee at the time]," Butler recalled.  "As we were judging this contest, these young men came and sat at our feet. Finally Judge Miller asked them if we could help them with  anything. The young man responded  'We've never seen a Black judge before.'' That changed my perspective on my role and what I had to do. They need to see that there are people like me out there who have    come up and have been able to survive through education and hard work. So I try to be out there doing things. I do a lot with schools because I really do believe that education is the way that they can advance their prospects for the future. They should take advantage of schooling while they can. A lot of young people don' understand this. If you work hard early in life, you don't have to work as hard later in life. But if they don't get that message until they are older, it's too late. I try to stress that message everywhere I go."
      While Butler has sat on the highest court in the state of Wisconsin for over two years now, he hasn't forgotten where he came from and how he got to be where he is now. If ever there was one, Justice Louis Butler is the common man's      Supreme Court justice.
Justice Louis Butler Jr. and the Wisconsin Supreme Court
A view from the Bench
By Jonathan Gramling
Part 2 of 2
    When Justice Louis B. Butler Jr. was appointed to the Wisconsin Supreme Court by Governor James Doyle Jr. in August 2004, he became the first African American to serve on the state's highest  court. And while the celebration continued through his swearing-in ceremony  at the State Capitol, Butler already knew there was a great deal of work ahead of him. At the time, Butler told this reporter that Chief Justice      Shirley Abrahamson had already given him a large stack of legal papers to read. Butler would dig in shortly after the ceremony.
      To the side of the courtroom reside the chambers of the seven justices. While Butler's chamber has a view of the State Capitol grounds, one gets the immediate impression that Butler has little time to
Homepage
November 29, 2006 Issue Archives