Wisconsin is a failed state and it has become the poster child for the failure of American democracy. Last night, from the safety of their own remote locations, the Wisconsin Supreme Court struck down the state’s stay-at-home order, officially known as Order 28. The deciding vote was cast by a lame-duck Justice who was just voted off the bench by an 11% margin and the majority opinion was written by a Justice who literally described the people working in a particular meatpacking plant as not like the “regular folk” in the surrounding county.
As Ian Millhiser writes, the decision itself is a mess and leaves the state government with no direction on how to move forward in controlling the pandemic after this decision. Current Wisconsin law gives broad powers to the state’s public health director for dealing with a public health crisis. The law was specifically strengthened by the Wisconsin legislature in the wake of the AIDS epidemic, allowing the public health department to “promulgate and enforce rules or issue orders for guarding against the introduction of any communicable disease into the state, for the control and suppression of communicable diseases, for the quarantine and disinfection of persons, localities and things infected or suspected of being infected by a communicable disease and for the sanitary care of jails, state prisons, mental health institutions, schools, and public buildings and connected premises. Any rule or order may be made applicable to the whole or any specified part of the state, or to any vessel or other conveyance”. This is the statutory authority under which the stay-at-home Order 28 was made.
The majority’s reasoning in striking down the order rests thinly on the arcane distinction between a rule, which must go through a long, often weeks-long, procedural process before being enacted, and an order, which can be implemented immediately. According to the majority, “the ordinance was a rule because it was a ‘regulation of general application'” and, because the proper procedures for implementing a rule were not followed, the order must be struck down. But then the majority goes on to state, “We do not define the precise scope of DHS authority under Wis. Stat. § 252.02(3), (4) and (6) [the statutes giving the authority outlined above] because clearly Order 28 went too far”.
As one of the dissenting Justices notes, the statute specifically states that an “order may be made applicable to the whole or any specified part of the state”, directly contradicting the “general application” theory on which the majority rests its decision. But in striking down Order 28 while refusing to define the precise scope of the DHS authority, “this court…has failed to provide almost any guidance for what the relevant laws mean, and how our state is to govern through this crisis moving forward”. In addition, the Wisconsin legislature is the plaintiff in this case but Order 28 specifically exempted the legislature from the order. As the dissenters also note, the legislature therefore has no standing to actually bring the case.
Finally, the plaintiffs in the case had merely asked for the order to be stayed for six days but the majority opinions seemingly tried to strike down the order immediately while also appearing to grant the stay. According to one concurring majority opinion, “although our declaration of rights [striking down the Order] is effective immediately, I would stay future actions to enforce our decision until May 20, 2020”. The dissent rightly queried this formation, asking, “So, is there a stay or isn’t there? It can’t be both ways. If the clarified vote is one for no stay, then the concurrence cannot stand…But if there is no stay, your [the plaintiffs] request [for a stay] has fallen on deaf ears. And there appears nothing in place to fill the void rendered by such a majority decision”.
Incredibly, one of the concurring opinions spends most of her time talking about liberty and comparing the stay-at-home order to the infamous and reviled Korematsu decision that allowed for the rounding up of Japanese, removing them from their homes and communities, and putting them in concentration camps during World War II. Nothing says Korematsu like being able to live in your home, shop at your neighborhood grocery store, but be prohibited from hanging out in your local bar.
Of course, this was the same Supreme Court that blocked the Governor’s attempt to delay state and local elections during the pandemic last month. That decision was eventually upheld by the US Supreme Court who managed to also botch their opinion, adding a postmark requirement for absentee ballots that was contained nowhere in Wisconsin election law. Nothing says “originalism” like federal courts literally rewriting state election law. Several new infections were directly related to the in-person voting required by that decision.
Besides working to get more Wisconsinites infected with the virus, there are other similarities not only between the two Supreme Courts but also between Wisconsin and the country as a whole. In Wisconsin, the deciding vote was cast by a lame-duck judge who has just lost the election to retain his seat. In Washington, four of the five conservative justices have been appointed by a president who originally lost the popular vote for the White House. One of those seats was only available because Senators from states that represent a minority of US citizens refused to give a hearing to Merrick Garland. Similarly, in the last state-wide elections, Democrats won 54% of the vote for the Wisconsin Assembly but only managed to win 36% of the seats in that body. In theory, Senators that represent just 11% of US citizens can bring the US Senate to its knees with a filibuster. In their dissent in the stay-at-home case, the Justices decry the “Legislature’s tactic to rewrite a duly enacted statute through litigation rather than legislation”. And that is exactly what Republicans are trying to do by challenging the constitutionality of the ACA after the Congress specifically decided not to repeal it.
As Millhiser writes, the Wisconsin decision is a failure of democracy. But our democracy is already failing on a national scale. How long can we go on with decisions made by a minority putting the lives of the majority in danger before that whole system collapses? Longer than we imagine, I fear.