I’m no lawyer, but I found this decision by the Wisconsin Supreme Court, a partisan battleground that is still 5-2 Republican dominated, but scheduled to become 4-3 in August after the crushing defeat of Justice Dan Kelly (R) by Judge Jill Karofsky (D) in the recent Wisconsin elections, to be quite interesting. It is the overturning of Governor Evers’ (D) executive order of stay at home and close businesses. The lawsuit, brought by the GOP-controlled legislature, was won by the Legislature, but not 5-2, but 4-3:
The euphoria that Wisconsin Republicans felt after winning yet another major political battle in the state Supreme Court this week is being dampened by a scathing dissent written by one of the conservative justices, raising doubts about how solid the conservative majority actually is.
Democrats praised Justice Brian Hagedorn for siding with liberals against revoking the Democratic governor’s stay-at-home order on Wednesday. Republicans vented their anger on Twitter.
“Conservatives have been snookered,” former state Rep. Adam Jarchow tweeted within minutes of the court’s ruling Wednesday, in reference to Hagedorn. “We will never learn.” [AP]
He certainly knows what to say to appear to be a professional jurist:
“During my campaign, I said that my job is to say what the law is, not what I think the law should be. I meant what I said,” Hagedorn told the AP in a text message. “To the best of my ability, I will apply the law as written, without fear or favor, in every case before me.”
Unlike his conservative colleague:
Hagedorn’s position drew scorn from conservative justices in the majority, including Justice Dan Kelly, who was defeated last month and will leave the court in August. Kelly wrote that Hagedorn had delivered an “insult” to the majority with his dissent.
“We swore to uphold the Wisconsin Constitution,” Kelly wrote. “He’s free to join in anytime he wishes.”
That the Wisconsin State Supreme Court is nakedly political is, I think, no longer in doubt. When former legislators don’t question the judgment of a Justice, but, instead, their party loyalty, that speaks to the degradation of the institution, from an interpreter of laws to a hand puppet of the party. This is not good for society or government. A neutral arbiter is necessary in order to interpret the laws and constitution of the land.
I’ve not been on this topic in a while, but I have long argued that the seats of judges, from the lowest to the highest, should not be elective positions, subject to the pressures and whims of the institutions that will fund their elective runs, the high fashionable needs of commerce, and other trivial topics. Instead, judges should be appointed by the Executive, but not be vulnerable to the Executive. They should be vulnerable to the Legislature, but only if a high bar can be surmounted: gross incompetence, felonious behavior, and other activities in the category. They should be term limited, although promotions, again through appointments, are possible and even probable. If a judge or justice is no longer vulnerable to the whims of political society, then they are better prepared to render service properly reflective of their neutral role. Can anyone see the unprofessional reactions of the majority in this case as neutral?
The recent eruptions over the races for the Wisconsin Supreme Court, and its recent rulings, have really cast a cloud of disapprobation over the entire institution. I have to wonder if, had they been appointed by an Executive using all of its resources to find good candidates, we would have seen behavior that appears to be so politically motivated.
