The Wisconsin Supreme Court invalidated the state’s stay-at-home order on Wednesday in a 4–3 decision that condemned the public health measure as a grave assault on citizens’ constitutional rights. Two justices compared the order, which closed nonessential businesses and limited large gatherings of people, to the internment of Japanese Americans during World War II. Even though the plaintiffs and defendants agreed the court should put its ruling on hold, the majority of justices refused to do so, instead implementing the decision immediately. As a result, Wisconsinites flocked to reopened bars Wednesday night during a pandemic, in a state that is nowhere close to flattening the curve.
Wisconsin’s Supreme Court may be the most radical and partisan tribunal in the nation. But it is less and less of an outlier. Today, some federal courts—especially those packed with President Donald Trump’s appointees—are embracing both the extreme ideology and the harsh, aggrieved rhetoric of Wednesday’s decision. Wisconsin’s high court illustrates what happens when conservative judges recklessly implement the Republican Party’s wishes from the bench. It is the canary in the coal mine for the judiciary as a whole.
The Wisconsin Supreme Court’s extremism can be attributed in part to former Republican Gov. Scott Walker, who appointed two deeply reactionary justices to the seven-member bench. (Justices are elected to 10-year terms, but governors get to fill vacancies.) Walker’s appointees, Rebecca Grassl Bradley and Daniel Kelly, are Federalist Society loyalists who dependably rule for the GOP. (In April, voters ousted Kelly by a huge margin, though he will remain on the bench through July.) Bradley, Kelly, and their conservative colleagues are consistently hostile to Gov. Tony Evers, a Democrat. (Walker boasted after Wednesday’s decision that he appointed both of them, noting the ruling was “a good reminder of how important judicial picks are.”) The far-right majority, for instance, notoriously reinstated the spring election in April over the governor’s objections.
Evers controls the state’s Department of Health Services, whose secretary, Andrea Palm, issued the state’s COVID-19 rules. State law grants Palm sweeping authority to take appropriate measures during “outbreaks and epidemics.” Republican legislators asked the high court to block Palm’s order and force Evers’ administration to craft new rules in conjunction with the Legislature, a weekslong process. The Legislature also asked the court to pause its decision for at least six days so the two branches could work out a replacement order.
On Wednesday, four conservative justices agreed to nullify the order, insisting that it exceeded Palm’s powers. But they refused to stay their decision, abruptly leaving Wisconsin without any statewide stay-at-home rules. In a bizarre move, Chief Justice Patience Roggensack wrote the majority opinion killing the order straight away—then wrote a concurrence to her own opinion claiming she would not enforce the decision until May 20. As liberal Justice Ann Walsh Bradley pointed out, these positions “are fundamentally contradictory,” adding: “If you are confused, you are not alone.”
“It is illogical to vote to deny a stay,” Bradley wrote, “while at the same time lamenting that because of the way you voted, there is no stay.”
Even more alarming, however, are the two concurrences by Justices Rebecca Grassl Bradley and Daniel Kelly, who joined each other’s opinions. In her lengthy concurrence, Bradley announced that Palm had claimed “authoritarian power” in violation of the Wisconsin Constitution. She compared the facts of the case to Korematsu, the notorious 1944 Supreme Court decision upholding Japanese internment. “Although headlines may sensationalize the invocation” of Korematsu in an effort to “trigger outrage,” Bradley wrote, the case “must be cited to explain the fundamental importance of judicial resistance to popular pressures.” She declared that “even if a significant portion of the public” supports Palm’s order, “fear never overrides the Constitution.” In a series of vicious footnotes, Bradley accused her colleagues of “spurning more than two centuries of fundamental constitutional law,” taking an approach that “shockingly” “subjugates liberty,” and making “thinly-veiled” efforts “at garnering a sensationalized headline” with “hyperbolic concerns” about the consequences of the decision.
Meanwhile, Kelly’s concurrence displayed a remarkable lack of humility for a judge who was just soundly rejected by the people he serves. He proposed new, far-reaching limitations on the executive branch’s authority, carrying forward the Legislature’s crusade to strip the Democratic governor of his powers. Oddly enough, both Kelly and Bradley rooted their theories in the Wisconsin Constitution—but they repeatedly cited three opinions involving the federal Constitution: U.S. Supreme Court Justice Neil Gorsuch’s dissent in Gundy v. U.S., Justice Antonin Scalia’s dissent in Morrison v. Olson, and Justice Clarence Thomas’ concurrence in Department of Transportation v. Association of American Railroads. None of these opinions actually carries legal weight. Yet it appears that Kelly and Bradley will transform them into Wisconsin law if they get the opportunity.
This insanity left the three dissenting justices—which included Brian Hagedorn, another conservative—to marvel at their colleagues’ reckless overreach and the possible death toll that will result from their ruling. “This decision will undoubtedly go down as one of the most blatant examples of judicial activism in this court’s history,” Justice Rebecca Frank Dallet wrote. “And it will be Wisconsinites who pay the price.” She accused the majority of using “analytical gymnastics to arrive at a desired conclusion” while painting Palm as a tyrant “for shock value.” Hagedorn reminded the majority that “the people have not empowered this court to step in and impose our wisdom on proper governance during this pandemic.” He concluded:
The judiciary must never cast aside our laws or the constitution itself in the name of liberty. The rule of law, and therefore the true liberty of the people, is threatened no less by a tyrannical judiciary than by a tyrannical executive or legislature. Today’s decision may or may not be good policy, but it is not grounded in the law.
The sniping among these justices, as well as the majority’s indifference toward the human cost of its decision, might seem like side effects of Wisconsin’s politicized judicial selection system. But with each passing day, the federal courts sound more and more like Wisconsin’s. On Thursday, for instance, the 4th U.S. Court of Appeals refused to throw out a constitutional challenge to Trump’s alleged acceptance of payments from foreign and domestic states. Its 9–6 decision sent the conservative dissenters into a spiral of rage: They accused their colleagues of acting like “partisan warriors in contradiction to the rule of law” who had caught the “partisan fevers” that “grip the national government.” (Three Trump judges signed onto this disparaging rhetoric.)
These judges may be taking their cues from the Supreme Court’s conservatives, who have begun openly bashing colleagues who rule against Trump. In 2019, Justice Clarence Thomas, joined by Justices Neil Gorsuch and Brett Kavanaugh, slammed Judge Jesse Furman for accurately holding that the Trump administration lied about its reason for adding a citizenship question to the census. Thomas proclaimed that Furman manipulated the facts to “create an eye-catching conspiracy web” because he was “transparently … predisposed to distrust” the administration. In other words, he called Furman—an Obama appointee—a partisan hack.
Trump judges on the lower courts are eager to emulate Thomas’ style. Many jettisoned any semblance of civility as soon as they joined the bench. Kyle Duncan refused to address a transgender litigant by her preferred name and pronouns. Justin Walker disparaged a mayor’s stay-at-home order and criticized “nonbelievers” for failing to understand Christianity. James Ho baselessly charged a district court judge of anti-Christian bias. Brantley Starr wrote an extravagantly snide and condescending opinion that essentially called government attorneys imbeciles who can’t even read Wikipedia.
These judges also share the Wisconsin Supreme Court’s indifference toward the consequences of potentially lethal rulings. Just look at their Second Amendment jurisprudence. The conservative legal movement has decided that mass shootings and incessant gun violence are simply the price we pay for liberty. Republican-appointed judges have insisted that states cannot limit access to firearms until a sufficient number of people have been shot to death, thereby justifying the restrictions. In 2018, U.S. District Judge Roger T. Benitez blocked a California law outlawing high-capacity magazines because the state experienced “only two” mass shootings involving these devices. A man took advantage of this decision by legally purchasing a high-capacity magazine and committing a mass shooting that killed 12 people.
Was Benitez, a George W. Bush appointee, chastened by the bloodshed that resulted from his ruling? Quite the opposite. In April, he blocked another California law that mandated background checks for ammunition sales.
Judges like Benitez have adopted the philosophy that an impartial jurist must ignore a ruling’s ramifications, even if they can be counted in human lives. The Wisconsin Supreme Court touted this belief on Wednesday by favoring the public’s right to spread an infectious disease over the state’s authority to stop a pandemic. It appears to be on the same page as the Trump administration: Attorney General William Barr has threatened to take legal action against other states’ stay-at-home orders, likening them to “house arrest,” while the president himself wants to “liberate” closed states. On Wednesday, Wisconsin’s far-right justices made their court the first to heed Trump’s call. It may not be the last.
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