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PowerUp Podcast: Judicial review with Justice Daniel Kelly

Empower Wisconsin | Aug. 11, 2020 

MADISON — If you thought Gov. Tony Evers’ timing on issuing his overreaching mask mandate was curious, you’re not alone. 

Former Wisconsin Supreme Court Justice Daniel Kelly thinks the same. 

“The timing was a little too coincidental,” the conservative justice told Empower Wisconsin’s M.D. Kittle during an interview last week on the Jay Weber Show. 

Evers, of course, waited until Kelly was about to leave the bench to issue the order requiring everyone 5 and up to wear a face covering in public spaces. The order went into effect the day that liberal Jill Karofsky replaced Kelly, whom she beat in Wisconsin’s April Supreme Court election. 

The Democrat governor knew the math. The conservative majority in May struck down the Evers administration’s extended stay-at-home order in a 4-3 decision. The court’s two liberals at the time dissented, not surprisingly arguing on the side of expanded powers for a left-wing executive. But conservative Justice Brian Hagedorn voted with the liberals, arguing the administration had the authority to deal with the spread of COVID-19 as it saw fit during a time of emergency — without legislative consent. 

For Weeks, Evers moaned that the court’s ruing deprived him of the authority to issue his mask mandate. He knew he couldn’t push his power trip until Kelly’s exit. 

“The governor was correct in his first assessment on whether he has the authority to do this or not. He doesn’t,” Kelly said. “He used up his emergency authority already and during that time it was his responsibility to confer with the Legislature so that the Legislature can develop policy to address this situation. And he didn’t do that. So he’s unilaterally re-upping his emergency authority. The laws don’t allow for that.”

Evers has shown time and time again he’s not all that concerned about what the laws say. 

Kelly believes his successor on the bench will take the same approach on the Supreme Court. 

“(Karofsky) made no bones about what she wants to do on the court (during the campaign),” Kelly said. “She made it clear that she was an activist and a politician and that her role on the court would be to develop policy. And that’s just not what the court is there to do. The court is there to decide cases, with respect to the law that already exists.” 

Former Justice Kelly is our guest on today’s edition of PowerUp, Empower Wisconsin’s podcast. 

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