Protests against COVID-19-inspired restrictions are escalating and the President is tweeting encouragements to “liberate” various states, so last week the Wisconsin Supreme Court joined the fray and halted the state’s stay at home order. The lawsuit was brought by Wisconsin’s hyper-partisan, Republican-controlled legislature against Democratic Governor Tom Evers, whose powers it had already curtailed right after he was elected.
In a display of judicial partisanship that was only barely disguised in formalist rhetoric, the court hardly seemed to notice the horrifying pandemic outside the justices’ chambers.
In Wisconsin alone, the pandemic has led to more than 11,000 being stricken with the coronavirus and 434 deaths. May 14 brought the third-highest single-day increase with 373 new cases and 13 more deaths caused by the virus. The Wisconsin unemployment rate is now 27%.
Unlike in Wisconsin, courts in other states have turned away challenges to COVID-19 restrictions. In March, a New Hampshire court refused to overturn a ban on gatherings of more than 50 people. Last month the Pennsylvania Supreme Court upheld the governor’s authority to close businesses in that state.
In contrast, the Wisconsin court, by a vote of 4 to 3, invalidated Department of Health Services Secretary-designee Andrea Palm’s order and ruled she overstepped her authority when she extended the stay at home order to May 26.
Even a pretense of judicial insularity may foster rational deliberation and decision-making and keep judges focused on interpreting the law rather than making social policy. But whether those two things are and should be separate, of course, is the subject of much of modern jurisprudence.
Judge Richard Posner, for example, has long argued that they cannot be separated and should not be. He advocates pragmatic adjudication, which calls for “heightened judicial concern for consequences and thus a disposition to base [judicial] policy judgments on them rather than on conceptualisms and generalities.”
Yet neither the majority nor the dissenters on the Wisconsin court registered very much concern for those consequences in their opinions, preferring instead to fight a familiar kind of formalist duel.
The court’s decision recapitulated, without acknowledgment, debates in analytic jurisprudence about the distinction between orders and rules. It seemed as if the justices were hearing echoes of John Austin’s and H.L.A. Hart’s very different theories of law. Austin famously associated law with commands or orders, while Hart insisted that law was a matter of rules.
The reason the court’s engagement with these jurisprudential questions was significant had to do with the requirements of state law. If Palm’s order were really a rule, rather than an order, she would have had to comply with a set of procedural steps that she did not follow.
Without a hint of irony, Chief Justice Patience Roggensack, who authored the majority opinion, noted that the state had made a rule defining what a rule is. Quoting the relevant state statute, she noted that, “‘Rule’ means a regulation, standard, statement of policy, or general order of general application that has the force of law and that is issued by an agency to implement, interpret, or make specific legislation enforced or administered by the agency or to govern the organization or procedure of the agency.”
As she saw it, Palm’s order was really a rule because of its general applicability. For the chief justice and her colleagues in the majority, general applicability was a matter of geography. Orders are directed to particular people, but because the order in question applied to the entire state it was really a rule.
In his dissent, Justice Brian Hagedorn called out the majority for misunderstanding the meaning of the phrase “general applicability,” which he said is a temporal not spatial concept. Channeling Hart, he noted that “Rules are designed to have enduring effect.” Since Palm’s order was applicable only during the COVID-19 crisis, it could not properly be considered a rule.
In addition to this formalist hair splitting, the justices joined an ideological debate about the value of public health versus individual freedom. This debate resonated with the President’s call for liberation or the COVID-19 protesters’ insistence that stay at home orders infringe on their liberties, some of whom have carried signs saying “Give me liberty or give me COVID-19.”
The majority inveighed against allowing a bureaucrat to exercise limitless power in the guise of protecting public health. Chief Justice Roggensack quoted approvingly a U.S. Department of Justice brief filed in a recent COVID-19 case, “There is no pandemic exception . . . to the fundamental liberties the Constitution safeguards. Indeed, ‘individual rights secured by the Constitution do not disappear during a public health crisis.’”
Justice Hagedorn accused the majority of not only misreading state law but also of trying to cramp the broad police power which the Constitution vests in the states. “The judiciary,” he wrote, “must never cast aside our laws or the constitution itself in the name of liberty.”
Governor Evers warned that the court’s decision “put public health and lives at serious risk.” Not surprisingly, the President, who has made his call for a faster reopening central to his election-year campaign message, called the Wisconsin ruling a win for the state, adding that “people want to get on with their lives.”
Their reactions register the fact that, whatever the legal niceties, last week’s decision was yet another important skirmish in our country’s ongoing cultural wars. While it may be good for the Trump campaign, it puts at risk the lives and well-being of Wisconsin’s citizens.