Wisconsin Supreme Court’s Bogus Stay on Lame Duck

June 13, 2019

by Matthew Rothschild, Executive Director

On Tuesday, the rightwing justices on the Wisconsin Supreme Court demonstrated once again that they have no compunction whatsoever about discarding established law if that’s what’s necessary to rule in favor of their Republican buddies in the legislature.

The case in question is the challenge brought by the Service Employees International Union -- and joined by Gov. Tony Evers and Attorney General Josh Kaul -- to the lame duck laws the legislature passed late last year.

At issue at the Wisconsin Supreme Court was a request from the defendants, Speaker Robin Vos and Majority Leader Scott Fitzgerald, to stay a lower court’s order that suspended some of the lame duck legislation pending appeal -- especially the part of the legislation that tied the hands of the Attorney General.

Vos and Fitzgerald had asked the lower court to give them the stay, but it denied that request, noting not only that “plaintiffs are likely to succeed on the merits on some of their claims” but also that at oral argument, “the legislative defendants could not identify any harm that would result if the court were to decline to issue a stay.”

Settled law requires that those seeking a stay must demonstrate “irreparable harm.” Vos and Fitzgerald did no such thing. Justice Rebecca Dallet picked up on this point. “In their brief to the circuit court, the Legislative Defendants pointed only generally to chaos resulting from not know which cases, if any, the Attorney General would defend.” In contrast, she said, the plaintiffs “provided numerous affidavits detailing specific harm resulting from the challenged statutory provisions.”

To overturn the stay, the Wisconsin Supreme Court, by law, had to find that “no reasonable judge” could decide the question the way the circuit court judge did. “There is no basis for this court to declare that no reasonable judge could reach the conclusion of the circuit court,” Dallet said. “This court’s inquiry should end there,” she added, which is a nice way of saying, “Case closed.”

But the conservative justices engaged in ridiculous and strenuous gymnastics to try to demonstrate that Vos and Fitzgerald would be harmed more than the plaintiffs, even though Vos and Fitzgerald provided scant evidence of such harm.

That’s par for the course for the rightwing justices of the Wisconsin Supreme Court. They don’t care what the law is, or what the evidence is. They just care about getting to the outcome that favors their ideological friends, and they’re happy to do back flips and cartwheels to get there.