Jurisprudence

Wisconsin’s Supreme Court Is Going to Use Fox News Arguments to Undo the State’s COVID-19 Restrictions

Demonstrators hold signs during a protest against the coronavirus shutdown in front of the State Capitol in Madison, Wisconsin, on April 24, 2020. It appears they have an ally in the state Supreme Court.
Demonstrators hold signs during a protest against the coronavirus shutdown in front of the State Capitol in Madison, Wisconsin, on April 24. It appears they have an ally in the state Supreme Court. Kamil Krzaczynski/Getty Images

The Wisconsin Supreme Court’s conservative majority looked poised on Tuesday to invalidate the state’s COVID-19 safer-at-home rules limiting public gatherings and commercial activity. Its decision could instantly lift public health restrictions, forcibly reopening the state and likely accelerating the spread of COVID-19. The court’s five Republican justices appeared to have no compunction about ending social distancing rules for the rest of the state’s citizens, even as they conducted their hearing remotely on Zoom.

On Tuesday, the court heard arguments in Wisconsin Legislature v. Palm, a challenge to the state’s safer-at-home rules. As the name indicates, the case was brought by the Wisconsin Legislature, which is controlled by Republicans—even though Democrats won a majority of the popular vote in the 2018 legislative election—thanks to the nation’s worst partisan gerrymander. GOP lawmakers are contesting Department of Health Services Secretary Andrea Palm’s authority to issue an order that shuttered schools and nonessential businesses while curbing resident’s ability to travel or gather in groups. Palm is an appointee of Democratic Gov. Tony Evers. Since Evers’ election, Republicans in the Legislature have sought to strip the executive branch of key powers to render the governor ineffectual.

Tuesday’s oral arguments indicated that the Legislature has an ally in the Wisconsin Supreme Court, which currently has a 5–2 conservative majority. (One conservative justice, Daniel Kelly, lost his seat to a liberal in April, but he will remain a lame duck through July.) The conservative bloc—minus Kelly, who recused—notoriously reinstated the April election after Evers attempted to postpone it, forcing residents to risk infection by casting votes in person. (At last count, dozens of coronavirus infections in the state had been linked to the election.) Palm gives these justices another opportunity to swat down the governor’s efforts to protect Wisconsinites from the coronavirus.

As Ian Millhiser wrote in Vox, the case reflects the Legislature’s frustration that it gave the state’s health services secretary so much authority in the first place. State law grants sweeping powers and duties to the Department of Health Services during a public health emergency, including the ability to “forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics.” But now that a Democrat controls the executive branch, Republicans want to strip Palm of her prerogative to exercise these powers. Instead, they insist she must go through an onerous process that includes a mandatory 10-day waiting period, and must also receive legislative input. Under this regime, legislative leaders could use public hearings to delay the order, and a legislative committee could suspend it, forcing the agency to start over. During a pandemic, this procedural obstacle course would effectively give the virus a weekslong head start over the government.

It may or may not be good policy to let the Department of Health Services shut down the state during “outbreaks and epidemics” without legislative approval. But that is what Wisconsin law permits. The Legislature seeks to nullify Palm’s order and compel her to craft a new one with its help, the law that they wrote be damned. Republican legislators have consistently downplayed the threat of COVID-19 and opposed stringent stay-at-home rules. So, to win legislative approval, Palm’s replacement order would have to be significantly more lenient. Republicans want to force Palm’s hand by killing her current order in court, leaving her to choose between a watered-down substitute and nothing at all.

The Wisconsin Supreme Court appears all too happy to oblige. Although the case does not involve the state constitution, Justice Rebecca Bradley—a Republican—framed Palm’s order as an egregious restriction on their “inherent rights.”

“Where in the Constitution,” Bradley asked, “did the people of Wisconsin confer the authority on a single unelected cabinet secretary to compel almost six million people to stay at home and close their businesses and face imprisonment if they don’t comply? With no input from the legislature, without the consent of the people? Isn’t it the very definition of tyranny for one person to order people to be imprisoned for going to work among other ordinarily lawful activities?”

Colin Roth, the assistant attorney general defending Palm’s order, tried to explain that “the Constitution provides that the legislature may enact statutes to protect the public health. And that is exactly what the legislature has done.” And he added that Palm “is clearly accountable to the people in the same way the governor is.” If the people don’t like her, they can vote out Evers in 2022, or even recall him. But Bradley disagreed, comparing Palm’s order to the racist executive order mandating the internment of Japanese immigrants and Japanese Americans during World War II, which the Supreme Court notoriously upheld in Korematsu v. United States.

“I’ll direct your attention,” Bradley told Roth, “to another time in history, in the Korematsu decision, where the court said the need for action was great and time was short and that justified, and I’m quoting, ‘assembling together and placing under guard all those of Japanese ancestry in assembly centers’ during World War II.”

Bradley then implied that Palm might force Wisconsinites into internment camps, as in Korematsu, if the court did not step in. “Could the secretary,” she asked Roth, “under this broad delegation of legislative power, or legislative-like power, order people out of their homes into centers where they are properly socially distanced in order to combat the pandemic?”

Roth attempted to explain that, of course, if a secretary tried to herd law-abiding Wisconsinites into detention centers, they could sue for violations of their individual liberties. But Bradley seemed shocked by the proposition that residents might have to go to court to protect their rights, even though that is how our constitutional democracy normally functions. She also compared the coronavirus to the seasonal flu, telling Roth: “The logical consequence of your argument counsel is that [Palm] could step in and do this every single flu season every year because the flu kills tens of thousands of people in America every year, and that’s a communicable disease.” (In reality, the coronavirus is much deadlier than the flu, hence Palm’s drastic steps to contain it.) This isn’t the first time Bradley has dismissed the severity of the virus; in March, she opposed an order halting noncriminal jury trials, writing that it was not “necessary to protect the public.”

The other conservative justices treated Roth with equal disdain when they were not disparaging their liberal colleagues. Kelly, meanwhile, showed no humility about the fact that he just lost his seat in a landslide. “Your position,” Kelly asked Roth with disbelief, “is that the secretary can identify behavior that is not otherwise criminal and she can, all by herself, sit down at her computer keyboard, write up a description of behavior, and make it criminal. Correct?” (Again, what Palm actually did was implement the Legislature’s protocol “to control outbreaks and epidemics.”) He also repeatedly interrupted his female colleagues and cut off Justice Rebecca Dallet, stating: “Mrs. Dallet, please allow me to conduct my own question.” (Dallet’s title is “Justice,” which will no longer be the case for Kelly in a matter of months.)

Chief Justice Patience Roggensack mostly tried to stop her colleagues from talking over one another, but it appears she does not take this pandemic seriously, either. At one point, Roth presented an eloquent argument comparing the coronavirus to “a wildfire spreading across the state.” Right now, the fire is “smoldering”; if the government “starts lifting these restrictions,” he said, “it’s going pop back up.” As an example, Roth cited Brown County, Wisconsin—where, in just two weeks, COVID-19 cases “surged almost tenfold from 60 to almost 800.”

Roggensack then jumped in. “These were due to the meatpacking, though,” she told Roth. “That’s where Brown County got the flare. It wasn’t just the regular folks in Brown County.” In other words, “regular folks” don’t need to worry about the coronavirus, so the example proves nothing. (It’s unclear why Roggensack believes meat packers won’t carry the disease back home to these “regular folks” if distancing policies are lifted.)

Annette Ziegler and Brian Hagedorn, the other conservative justices, also sounded skeptical of Palm’s order. (Hagedorn, at least, asked Roth real legal questions rather than auditioning for Fox & Friends.) The two liberal justices, Dallet and Justice Ann Walsh Bradley, tried to bring their court back to reality, to no avail. Bradley repeatedly asked what “kind of ramifications or chaos would result” if the court kills Palm’s order, leaving the state with no real pandemic plan. Roth responded that such a decision would be “absolutely devastating and extraordinarily unwise,” allowing people “to pour out into the streets” and spread “an out-of-control virus with no weapon to fight it, no treatments, no vaccine, nothing.”

The right wing of the court, however, seemed totally detached from the crisis, once again indifferent to the human lives at stake. They favored an abstract conception of “liberty” over every Wisconsinite’s concrete interest in surviving this emergency, framing Palm as a tyrant itching to oppress the citizenry rather than a public health expert striving to stop a deadly virus in accordance with her state’s laws and constitution. The Wisconsin Supreme Court may be divided between conservatives and liberals. But perhaps the deeper division is between justices who respect the law and justices who will sacrifice lives on the altar of partisanship.

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