Wisconsin’s Supreme Court COVID-Order Invalidation is Both Less Than, and Exactly What, Meets the Eye Commentary
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Wisconsin’s Supreme Court COVID-Order Invalidation is Both Less Than, and Exactly What, Meets the Eye

If any mental picture is evoked by the recent Wisconsin Supreme Court decision invalidating the State’s COVID-19-era stay-at-home/business-closure Order (Wisconsin Legislature v. Palm, et. al.) it’s probably of unrestrained partying — without masks and social-distancing — engaged in by less-risk-averse residents when unexpectedly freed of the Order’s constraints.

That’s certainly one vivid takeaway from the case. As noted in the conclusion, it points to the great power for good or ill of momentous judicial decisions.

But four other lessons emerge from the Palm case:

1)  Always Read the Opinion… and 2) Don’t Discount State Non-constitutional Law

Palm was portrayed in some news reports and many pundit postings as a fundamental faceoff between individual and business rights, on the one hand, and the government’s power of public-health regulation. Yet that fight was mainly absent from the case, at least in terms of the legal reasoning and focus of the majority opinion by Chief Justice Patience Roggensack. Instead, the majority and dissent mainly debated arcane points of state law involving administrative procedures and statutory interpretation.

Specifically, in voiding “Emergency Order 28” (described by the majority opinion as “ordering everyone to stay home, closing all ‘non-essential’ businesses, prohibiting private gatherings of any number of people who are not part of a single household, and forbidding all ‘non-essential’ travel”) a 4-3 majority (split along partisan and ideological lines) relied on two old chestnuts of administrative law. First, the majority found that the Wisconsin Department of Health Services Secretary-designee Andrea Palm violated state administrative-procedure laws by failing to subject this “rule” to notice-and-public-comment procedures. Second, the majority found that Palm’s order was outside the authority granted her Department under Wisconsin law (i.e., the action was ultra vires).

At least in its holding and reasoning, the Palm decision is of limited applicability even inside Wisconsin. For example, the majority opinion noted early on that the challenge concerned “the assertion of power by one unelected official” and “is not about” the Wisconsin Governor’s earlier Emergency Order declaring a public health emergency and authorizing various governmental agencies to respond. Disclaiming that the Palm challenge was about “the powers of the Governor,” the majority opinion later noted that “Constitutional law has generally permitted the Governor to respond to emergencies without the need for legislative approval.”

Application outside Wisconsin is limited by the majority’s heightened concern because Secretary Palm backed up her Order with the threat of misdemeanor criminal sanctions; the majority also used idiosyncratic Wisconsin approaches in defining when a legislature has standing to sue and in applying a recent “explicit authority requirement” imposed on statutory delegations of power to administrative agencies.

The first two lessons from Palm thus appear to be about 1) the necessity of reading below the headlines in understanding the true legal reach of a case and 2) the importance of state law – and state non-constitutional law at that – as an important source of resolving disputes in our federalistic system.

3)  …But Look Below the Surface for Broader Cross-Currents

Looking beyond the majority’s core rationale, however, abundant evidence exists that broader legal and policy concerns not officially part of the Wisconsin Supreme Court’s rationale were at play. The concurring opinions used high-flying rhetoric about the primacy of personal liberty, the urgency of restraining the “trampling” of constitutional rights by those who would “contaminate constitutional analysis with then-prevailing notions of what is ‘good’ for society,” the need to stand up to the Secretary’s “particularly chilling” claims of unlimited power, and the like. Not to be outdone, one dissenting opinion characterized the majority’s ruling as “one of the most blatant examples of judicial activism in this court’s history,” flying in the face of “[t]he broad power to take swift measures in response to communicable disease” that “has existed uninterrupted since 1876.” Invoking the danger of “a tyrannical judiciary,” another dissenter warned that “the judiciary must never cast aside our laws or the constitution itself in the name of liberty.”

Perhaps the best evidence that larger issues were afoot related to the Palm majority’s unusual handling of the key timing question in the controversy – when should the lifting of the April order go into effect?

Even the legislative challengers did not ask the justices to immediately lift Palm’s order. Apparently recognizing, as one of the dissenting justices put it, that “chaos and confusion…would be occasioned” by voiding Palm’s Emergency Order without a stay so that a replacement rule could go into effect, the legislature initially asked for a six-day delay to the ruling’s effective date (and then doubled that to 12 days.)

But the majority opinion by Chief Justice Roggensack was unwilling to wait. (Two concurring Justices would have deactivated the Palm Order several weeks earlier through a temporary stay!)

4)  …And Don’t Forget Group Dynamics

Leave to one side the question of whether, if the justices had stayed the effective date of their order, more modest guidance could have been hammered out in the highly polarized environment of Wisconsin’s currently divided government. And also set aside the perennial question of whether such a stay would have been admirable judicial restraint (because it would have returned the policy ball to the elected policymakers’ court) or unjustified judicial activism (because it would have left in place a regulatory regime neither the executive nor legislative branches had envisioned).

Still, what remains is a very strange and interesting example of group dynamics in a multi-member court: In a separate concurrence to the majority opinion she herself authored, Chief Justice Roggensack stated that she would have preferred to grant the legislature-requested stay. Yet, as one dissenting justice pointed out, the Chief Justice easily could have had her way if she had voted with the three dissenting colleagues who would have left the order in place for even longer; the dissenter wrote, “It is illogical to vote to deny a stay, while at the same time lamenting that because of the way you voted, there is no stay.”

One can only speculate about what interpersonal dynamics (an unwillingness to align herself with the dissenters in a highly politicized and polarized court? A fear of voter backlash by a jurist who may run for re-election and is subject to recall? Something else?) led to Chief Justice Roggensack’s timidity.

But Palm points up the important insight of court watchers that understanding decision-making in collegial courts requires paying attention to the critical aspect of group dynamics, bargaining, and persuasion.

5)  The Biggest Lesson?  Judicial Opinions Have (potentially deadly) Consequences

Ultimately, as noted at the outset, the biggest “lesson” from Wisconsin Legislature v. Palm may unfortunately be yet another reminder that judicial opinions have serious real-world consequences. Indeed, it is not farfetched to think that the consequences of Wisconsin’s judicially triggered immediate, unplanned return to the social opening may involve matters of life and death.

For more on COVID-19, see our special coverage.


Professor Glenn C. Smith teaches constitutional law at California Western School of Law in San Diego.  He is the principal co-author of Constitutional Law for Dummies [John Wiley & Sons, Inc. 2012].


Suggested citation: Glenn C. Smith, Wisconsin’s Supreme Court COVID-Order Invalidation is Both Less Than, and Exactly What, Meets the Eye, JURIST – Academic Commentary, June 4, 2020, https://www.jurist.org/commentary/2020/06/glenn-smith-wisconsin-supreme-court-covid-19.

This article was prepared for publication by Brianna Bell, a JURIST staff editor. Please direct any questions or comments to her at commentary@jurist.org.


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