Wisconsin Supreme Court decision on COVID-19: a quick take

A 4-3 majority struck down the DHS emergency shelter-in-place order.  In a remarkably convoluted opinion, sowing confusion at the very least and reflecting the polarization that plagues modern-day law & politics in the great state of Wisconsin.

How so?

First, you’ll see that it is 161 pages.  40 pages is taken up with two concurring opinions which offer a rather extravagant set of claims about nondelegation, separation of powers, anti-administrative state, natural rights, etc., etc.  Over-the-top stuff. Read it and (depending upon your priors) weep or cheer.

Second, there is a hard question surfaced by Justice Bradley at the beginning of the dissent and that is whether there are truly four votes for implementing this decision immediately, and therefore without a stay.  One of the concurring judges says she would impose a stay.  But she joins the majority opinion “in full” (see her fn.1).  So, it is confusing whether this is 4-3 or 3-3-1.  The answer to this question is of course essential as a practical matter.  Maybe this will be unraveled in the next day or even in the next few hours.

Third, the scope of the ruling is narrow, in that four justices note that this order exceeds the agency’s statutory authority – not the governor’s authority, which he could arguably exercise under his emergency powers.  On the other hand, we know from the two concurring opinions that these two justices wouldn’t go along with a do-over whereby the governor imposed the order or, alternatively, an order that complied with all the administrative procedures imposed by the statute.

So, this case took a week to come out, and I can see why.  They never were able to reach any real agreement about why the order was bad.  Nor were they able to give any real guidance to either the executive or legislative branch about truly how to fix the problem.  Nonetheless, we are treated to 161 pages of text, wandering around John Locke, Thomas Jefferson, Scalia and Gorsuch, some prominent anti-administrativists, a couple Wisconsin L Rev student comments, and a bunch of Wisconsin cases that don’t, at least at a glance, seem to be very much on point.

UPDATE: As the first comment notes, I mixed up two justices in noting that a concurring justice said in footnote that she joined the majority opinion "in full." This was not the justice who authored the majority opinion, Chief Justice Roggensack. I stand corrected.  However, the same confusion remains: What do we do about a majority opinion that says "no stay" with a concurring opinion, issued by the author of the majority opinion, that says "stay?"  If I had to choose, I would say that the majority opinion stands on its own terms, and we thereby get to four.  But we get there by simply disregarding the CJ's concurring opinion. It's tantamount to "I wish I could have convinced my colleagues to issue a stay, but I couldn't and so I'll just tell you why I am bummed."

Dan