Empower Wisconsin | May 28, 2020
By Adam Jarchow
I’ve intentionally put some temporal distance between this column and the Wisconsin Supreme Court decision in Wisconsin Legislature v. Palm — the case that struck down Gov. Tony Evers’ stay-at-home order. I find when I’m angry, it’s best to let it marinate for a bit. And on the evening of May 13, I was angry. Furious, in fact. Maybe that sounds strange. My preferred side won. I had argued for weeks that the lockdown was a violation of Wisconsin law and our Constitution. I even filed a brief in the case on behalf of a group of sportsmen. And we won! The state, or much of it, is reopening.
So why the anger?
Simply put, Justice Brian Hagedorn’s dissent. Elected to the bench as a conservative, Hagedorn sided with the court’s two liberals justices, who never fail to stand with liberal causes (and big government, if the governing are liberal), in the court’s 4-3 ruling. Ultimately, Hagedorn thought the lawsuit was not a “battle over the constitutional limits on executive power,” but whether Department of Health Services Secretary-designee Andrea Palm has the authority to issue a sweeping emergency order — with criminal penalties — without legislative oversight.
Look, I’ve been a lawyer for a long time. Win some, lose some. It’s rare that I get too exercised about any outcome. Sometimes, I disagree. Sometimes, I’m disappointed. But rarely am I angry. So what was different about the Hagedorn dissent? I think it boils down to this: out of the thousands of cases that are decided each year, very few touch the fundamental structure of freedom and liberty that we, as conservatives, hold dear. In other words, in 99.99 percent of the cases, I can see how judges — even conservative judges — can take a position that is different than the so-called “conservative position.” I don’t like it. But that’s life. Judges are judges, not politicians. Judicial independence is sacred and it means at times, we don’t get our way.
Then there are the big cases, when supposedly conservative justices clearly took wrong constitutional turns. Like U.S. Supreme Court Chief Justice John Roberts’ opinion that propped up Obamacare. Or Justice Anthony Kennedy’s “swing votes” to uphold Roe v Wade. Or when Justice Sandra Day O’Connor cast a decisive vote to save Affirmative Action, seemingly antithetical to her conservative values — and where she had stood in the past.
And then there’s Justice Hagedorn’s dissent in Palm.
Each of the aforementioned cases touched on the fundamental understanding conservatives have of our structure of government. Roe, in its progeny that states should be able play a role in protecting the unborn (federalism). Affirmative Action, that all men are created equal. Obamacare, you can’t force people to buy a product (health insurance) as a condition to being alive. And Palm, that one person may not indefinitely prohibit citizens from traveling or leaving their homes or operating an otherwise legal business.
Some claim Hagedorn would have gone a different way if it had been a different case. Maybe. But he didn’t. Had he wanted to do that, he could have concurred and written a separate opinion. Instead, he wrote a 53-page dissent. Had his position carried the day, make no mistake, we would all still be in lockdown. Remember, Evers’ scope statement asked for another 150 days. What’s worse, we would all be stuck with virtually no recourse. There was no Plan B. We pinned all our hopes on the Court.
When it comes down to it, what made me most angry is the feeling that I can’t shake: That as conservatives, we have once again been fooled. You notice that on big cases liberals never break ranks.
Justice Roberts famously said judges should be umpires calling balls and strikes. I largely agree. But when the umpire calls strike three on a ball that is six inches outside in the bottom of the ninth with bases loaded, that’s more than calling balls and strikes. That’s deciding the game.
I pray this dissent was an aberration and Justice Hagedorn comes home to the legal movement that saw him through one of the toughest Supreme Court races in memory. I hope he will see that his elevation to the Appeals Court by former Gov. Scott Walker, a conservative, and his election to the Supreme Court were not possible without the blood, sweat and tears of conservative activists who rightly expect that the umpire won’t blow the call when the game is on the line.
Adam Jarchow serves as president of Empower Wisconsin. The small business owner, attorney and volunteer firefighter is a former Republican state representative in the Legislature.