Wisconsin Supreme Court justices pledged not to write new law. Could they do that in coronavirus case?

MADISON - What daily life looks like in Wisconsin is now up to the state Supreme Court as justices decide whether Gov. Tony Evers and his administration went outside the bounds of the law to close businesses and schools in an effort to control a virus that has no cure. 

Justices on the state's highest court have campaigned for their seats on a promise to voters they would not use their position on the bench to take the job of the Legislature and rewrite state law.  

Law experts don't agree on whether that will indeed take place if the court sides with Republican lawmakers who filed the lawsuit before the court to block the governor's order.

"The question I have is why they should be going to court at all," University of Wisconsin Law School constitutional law professor David Schwartz said. "(GOP lawmakers) are asking the court to basically rewrite this law — to turn it into something much narrower than it is."

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Schwartz said state law is broad and clear on the powers it provides Evers and his administration, specifically Department of Health Services Secretary Andrea Palm.

State law governing communicable diseases says, "The department (of Health Services) may close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics," and, "The department may authorize and implement all emergency measures necessary to control communicable diseases."

Schwartz, who has donated money to the campaigns of liberal judges and justices, said by closing non-essential businesses, for example, Evers is carrying out these laws — not operating under unwritten rules. 

"How can you execute the Legislature's instruction to close 'other places to control outbreaks and epidemics' without deciding what those places are?" he said. 

But Ryan Owens, a University of Wisconsin-Madison political science professor who studies the Supreme Court, said that analysis misjudges what courts do. 

"Anytime courts interpret the law or put a judicial glaze on a statute — they're interpreting the law" not changing it, he said.

Owens, who is a member of the conservative Federalist Society for Law and Public Policy Studies, said if lawmakers disagree with the impact of a court ruling on state law, that doesn't mean the court has acted in a way that goes beyond interpretation. 

"I don’t think there’s anything inconsistent with what the court may do here and what you point out in the past campaigns," he said. 

Owens, director of the Tommy G. Thompson Center on Public Leadership at UW-Madison that was proposed by the GOP lawmakers who filed the lawsuit, said the lawsuit has exposed limitations in the state's existing law regarding how government officials handle public emergencies.

"I think it’s really exposed the fact we just haven’t thought out some of these things," he said. "Which isn’t surprising … the Legislature and executive branch often address things that are immediately before them."

The first laws providing powers to government officials were crafted in 1887, about 30 years before the 1918 flu pandemic that epidemiologists have said is similar to this year's coronavirus outbreak.

In 1981, amid the HIV and AIDS epidemic, the state Legislature gave the power to DHS to issue orders and “authorize and implement all emergency measures to control communicable diseases," according to the history of changes to the state's communicable disease laws. 

Schwartz said GOP lawmakers' arguments show they want to change state law and should do so through the legislative process instead of making "an end-run" by using the court in the absence of enough votes to do so through lawmaking. 

"The fact is the law was written to give the governor very broad enforcement powers to deal with communicable diseases," he said. "This group of legislators wants to roll that back. They wish the law said something else."

Eric J. Segall is a Georgia State University law professor, author of "Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges," and a frequent commentator on courts.

He called claims that conservatives "follow the law," while others "make law," heinous and untrue.

He said judges' claimed judicial philosophies nearly always go out the window in hard cases. 

"Originalism is maybe the most misleading of them all," he said. "There are a million ways around it."

Originalism refers to interpreting the Constitution based on its authors' understanding of it in the 18th century. It became popular in the 1980s as an alternative to the theory that the Constitution is a "living document" that should be interpreted in light of current times and realities.

Conservative justices on the Wisconsin Supreme Court like Rebecca Bradley and Daniel Kelly have said their judicial philosophies are rooted in originalism. 

In the tough cases, Segall said, judges' personal values and experiences always wind up influencing their decisions, though their own perceptions are that they do not. And on state supreme courts — unlike federal courts — justices may also be considering — consciously or not — their own re-elections.

Wisconsin justices are elected to 10-year terms.

In a brief filed in the lawsuit by 17 legal scholars from 12 separate law schools across the country, and written by the University of Wisconsin Law School's Miriam Seifter, the law professors and experts said the Legislature's position threatens the separation of powers tenents of government. 

"In the throes of a grave public health crisis, the Legislature asks this Court to gut a statute that it passed and to nullify an executive order that aims to abate the worst epidemic to hit this country in more than a century," Seifter wrote. "Flouting separation-of-powers principles, the Legislature seeks to meddle in the implementation of the law it wrote."

Seifter, who specializes in administrative law, federalism, state and local government law and constitutional law, said the relief the Legislature requests would require the Supreme Court "to short-circuit established checks and balances and muddy lines

of accountability."

Rick Esenberg, president and chief counsel of the conservative Wisconsin Institute for Law & Liberty, and others at the organization argued in a brief filed on behalf of the Independent Business Association of Wisconsin and other businesses, that even if that argument is correct — the laws in question "constitute an unconstitutional delegation of legislative power to the executive."

"Most separation of powers cases address excessive concentrations of power that, while raising serious constitutional questions, do not rise to the level of tyranny. But the claims of authority made by (the Evers administration) come perilously close," the legal organization wrote.

"This not because it is unnecessary for state government to formulate a strong response to the spread of COVID-19 or even due to the merit (or lack of merit) of the particular response that DHS has chosen. The problem here is the breadth of authority that DHS claims to possess."

Esenberg said in a statement that Evers and Palm "have taken an overly expansive approach to how power and decision-making is made in Wisconsin."

Contact Molly Beck at molly.beck@jrn.com. Follow her on Twitter at @MollyBeck.