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Where have all the Supreme Court conservatives gone?

Empower Wisconsin | Aug. 14, 2020

By M.D. Kittle

MADISON —Wisconsin conservative justices this week passed on another opportunity to rein in another power-hungry, unelected bureaucrat.

As Empower Wisconsin first reported, the state Supreme Court on Monday dismissed a petition for relief from parents of private school students. The plaintiffs asked the court to slap an injunction on Milwaukee Public Health Commissioner Jeanette Kowalik, who has ordered that public and private schools in Milwaukee can open up for in-class education —  if their plans receive her blessing.

Advocates for Wisconsin private and parental choice schools say the health commissioner has imposed stringent requirements nearly impossible to meet and has sweeping authority to close schools at her discretion. More so, Kowalik issued her new rules just days before some schools are set to reopen.

“What’s frustrating is that we’re having these discussions (now),” Jim Bender, president of School Choice Wisconsin told Empower Wisconsin this week. “To come in the 11th hour with the force of law and create a complex system of approval to be able to open schools has proven problematic.”

The petition argues that the Wisconsin Supreme Court’s 4-3 ruling in May ending the Evers administration’s extended statewide lockdown also prevented Department of Health Services Secretary-designee Andrea Palm from using “broad language to justify the same type of broad restrictions put back into place here by the Commissioner.” In short, Kowalik doesn’t have the authority.

Apparently the court didn’t want to get involved, despite the disruption and the real assault on civil liberties the health czar’s edict has created.

Conservative Justice Rebecca Bradley was the lone dissenting vote on a court now led by a slim 4-3 majority following the departure of conservative Justice Daniel Kelly earlier this month. Kelly was replaced by Madison liberal Jill Karofsky, who defeated Kelly in Wisconsin’s spring election.

In the May ruling, stemming from a lawsuit brought by the Republican-controlled Legislature, Kelly and Bradley each wrote pointed criticisms of the Evers administration’s overreach and abuse of its powers. Four of the five conservatives at the time found that the administration violated state law by failing to consult the Legislature after the expiration of the first 60-day emergency stay-at-home order.

Conservative Justice Brian Hagedorn joined the court’s two liberals at the time in dissenting, arguing that the executive branch was within its rights to extend the order — or, put another way, curtail the civil liberties of Wisconsinites during the COVID-19 pandemic.

“The rule of law, and therefore the true liberty of the people, is threatened no less by a tyrannical judiciary than by a tyrannical executive or legislature. Today’s decision may or may not be good policy, but it is not grounded in law,” he wrote in his stinging dissent of the majority opinion.

His conservative peers argued that bad law can’t trump the constitution. That argument would seem to apply again in the petition the court dismissed this week.

Hagedorn, who was praised for his dissent by many of the same liberals and mainstream media outlets that painted him as a villain during his campaign for the bench, argued the Legislature had “no standing” in its case against the Evers administration.

Yet, he voted to dismiss a petition filed by a family negatively impacted by the Milwaukee Health Commissioner’s order — a family that clearly has standing. 

“This case appears to have everything that Justice Hagedorn said he needed in the Palm case. But his vote remained the same — against freedom and in favor of oppressive government restrictions,” a well known official who has reviewed the court filings

“This time the effect is specifically on children, who continue to suffer the collateral consequences of these shutdowns, in terms of lost educational opportunities, lost extracurricular chances, and real life mental health impacts,” the source said.

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