The chief judge of the Seventh Circuit is an example for others to follow — including in her decision to retire.
W hy does a judge choose to retire? Not long ago in these pages, I described the kind of strategic thinking that can motivate a retirement-eligible judge to step down — or not. But perhaps the better path still is when a judge recognizes that she is just a steward of an office that belongs to the people, and that the time has come for her to step aside. Chief Judge Diane Sykes of the U.S. Court of Appeals for the Seventh Circuit recently announced that she will be taking that path. A former Supreme Court short-lister, Judge Sykes has had a varied and consequential legal career. In the insular world of the law, talented circuit judges are celebrities in their own rights, sitting atop the legal food chains in their respective jurisdictions, and commanding prestige from government officials, the academy, and the press. That Judge Sykes chose to step away from this makes hers a rare model of honorable service.
Judge Sykes started her career as a newspaper journalist in Milwaukee, a fact that caused her to drill into decades of law clerks (including me) that good legal writing always starts with a compelling lede. Switching to the law, she was a litigator at a time when young lawyers got real experience — and young female lawyers were still relatively rare. This experience, in turn, allowed her to become a trial judge in Milwaukee at 34. She did her job so well that the guards in Wisconsin’s maximum-security prison jokingly named a wing after her.
This was while Republicans in Wisconsin were ascendant, and Governor Tommy Thompson appointed her to the state’s supreme court when she was just 41. Soon after her appointment, she ran for reelection, traversing the state and pitching herself to voters both on her record and — importantly — on her judicial philosophy of textualism and originalism. It’s there that she had her greatest effect on the Wisconsin Supreme Court: establishing that textualism was the method of statutory interpretation in Wisconsin courts. Before too long, Justice Sykes was being noticed for still higher office. President George W. Bush appointed her to the Seventh Circuit, where she has remained since.
The Seventh Circuit she joined was a court unlike any of its sister circuits. Dominated by academic giants like Richard Posner and Frank Easterbrook, on one hand, and elder statesmen like Joel Flaum and Terry Evans (her old boss), on the other, it had big personalities and established ways of doing business. And it was like that for a while: Judge Sykes would be one of the junior-most judges on the court for over a dozen years. But she navigated it adroitly. As another judge told me a decade into her service, “There are two kinds of judges on the Seventh Circuit: professors and trial judges. Judge Sykes is the one who gets them both.”
The composition of the Seventh Circuit — ruby-red Indiana, royal-blue Illinois, and perpetually politically indecisive Wisconsin — meant it saw every kind of controversy imaginable. At the same time, while it was a conservative-leaning court, the personalities at play on it did not make fertile ground for orthodox textualism and originalism. Nevertheless, Judge Sykes managed to deliver significant conservative legal victories. In Ezell v. City of Chicago, she set the standard for conservative Second Amendment jurisprudence. In Wisconsin Right to Life v. Barland and its progeny, she advanced the Mitch McConnell revolution in political speech and dismantled Wisconsin’s Orwellian campaign-regulation regime. In Korte v. Sebelius, she invalidated the Obama health care rule that required private employers to pay for birth control and abortifacients, laying down many of the arguments later used in Hobby Lobby.
Even when Judge Sykes ultimately lost, she made her mark. Consider Christian Legal Society v. Walker, where her opinion was a mirror-image — correct — version of the Supreme Court’s odious Christian Legal Society v. Martinez, and her dissent in Hively v. Ivy Tech, which presaged the ultimate dissents in the Bostock v. Clayton County case prohibiting employment discrimination against gays and lesbians. She was even willing to stand alone against all her colleagues, twice, in U.S. v. Skoien, on the Second Amendment, and River of Life Kingdom Ministries v. Village of Hazel Crest, on religious liberty. She was right both times: in Skoien, being perhaps the first circuit judge to identify the constitutional challenges that awaited the federal statute prohibiting certain people from owning firearms; and in River of Life, correctly anticipating the eventual turn in religious liberty jurisprudence toward proscribing anti-religious discrimination.
With this record it didn’t surprise when Donald Trump, pressed on the debate stage about replacing the late Justice Antonin Scalia, responded that he would pick “a Diane Sykes or a Bill Pryor.”
Judge Sykes’s sound judgment extended beyond hot button cases. While known for carrying no brief for criminals, she didn’t abide sloppy prosecutors either. When the government didn’t do its homework, prosecutors could suddenly find themselves on the wrong side of her libertarian streak. Barack Obama notwithstanding, though, she never let empathy for a party interfere with her considered legal judgment. At the same time, she always recognized the humanity of the parties before her — not always a given with a Seventh Circuit panel. While she was frequently tough, she was unfailingly polite and gracious.
She also turned out to be an accomplished administrative reformer. It’s not worth belaboring because court administration is its own unique subset of tedium. But in performing these duties, she learned the hard lesson that the reward for sound management is still greater responsibility. The chief justice eventually asked her to join the Executive Committee of the Judicial Conference.
Beyond her presence on the bench, Judge Sykes stood out for her commitment to her family and her community. A single mother of young children when first appointed to the Seventh Circuit, she would get up before dawn and take the train to Chicago for sittings to be home with her boys at night. (Long before the Covid innovation of Zoom hearings, she called into argument once while stuck on the tracks in a blizzard.) She came from a family of strong civic engagement — her dad was a city manager, and her stepmother was active in charity and in Wisconsin’s famous festivals. As a staunch Catholic, she is a fixture at the Milwaukee Archbishop’s annual “Red Mass”; the invitation she sent for the clerk reunion celebrating her 20th anniversary on the federal bench was sure to mention the availability of Mass in the morning.
In seven months, though, Judge Sykes will be stepping down — while continuing to provide substantial service in senior status. With two years remaining in her chief-judge term and a mere two years into her retirement eligibility, this may strike some in the legal elite as odd. Again, there is no legal job as consequential, interesting, prestigious, and stable as that of a judge on a U.S. Court of Appeals. In the end, though, that doesn’t matter. Judge Sykes has secured a legacy in the law and for her community, and now it’s time for someone else to have that same opportunity. The Constitution will still be there tomorrow, but her grandchildren will be a day older.
That’s what makes Judge Sykes’s service so honorable. She was willing and able to serve when called to do it, yet at the same time, she knew that the job wasn’t about her, and that her life wasn’t about the job. Some things — like family — are more important than even high office. Conservatives and the country owe Judge Sykes a debt of gratitude for her service, while young lawyers should look no further to find an example to follow.