Wisconsin Supreme Court Justice Rebecca Bradley invoked Korematsu v. the United States, the Supreme Court case which upheld Japanese-American internment during World War II, in the midst of oral arguments centered on the state’s stay-at-home order Tuesday.
Republicans in the state legislature sued the state’s top health officials last month, claiming that they were ruling by “administrative fiat” after secretary-designee of the Department of Health Services Andrea Palm extended the stay-at-home order to May 26.
“One of the rationales that we’re hearing justifying the Secretary’s order in this case is that, well, it’s a pandemic and there isn’t enough time to promulgate a rule and have the legislature involved with determining the details of the scope of the Secretary’s authority,” Bradley said. “I’ll direct your attention to another time in history, in the Korematsu decision, where the Court said the need for action is great and time is short, and that justified ‘assembling together and placing under guard all those of Japanese ancestry’ in assembly centers during World War II.”
“Could the Secretary, under this broad delegation of legislative or legislative-like power, order people out of their homes and into centers where they’d be properly socially distanced in order to combat the pandemic?” she asked.
Assistant Attorney General Colin Roth, defending Palm, argued that the complaint was not based on a constitutional challenge like Korematsu.
“Korematsu was an equal protection challenge to the actions the government took to address the crisis — this is not a substantive constitutional challenge to what DHS has done,” he said, referring to the Wisconsin Department of Public Health.
Bradley cut him off.
“My question to you, in invoking Korematsu, is not the basis claims brought in that case versus this case: what are limits, constitutional or statutory? There have to be some, don’t there, counsel?” she asked.
Korematsu, often cited as one of the worst Supreme Court decisions ever made, was directly repudiated by members of the Court in 2018.
The theme Bradley hit was a frequent one from the conservative justices during Tuesday’s Zoom-hosted proceedings. She also compared the order to “tyranny.” Lame duck Justice Daniel Kelly, a conservative recently beaten in an election by Democratic-backed Justice Jill Karofsky, pummeled what he characterized as Palm’s unilateral creation of new criminal laws based on the punishments for defying the stay-at-home order.
During one of the few minutes the liberal justices snagged to question Roth, Justice Ann Walsh Bradley asked about the “implications” of the court repealing the stay-at-home order and leaving nothing in its wake.
“The legislature understands that if Safer-At-Home is enjoined with nothing to replace it, people will pour into the streets and the disease will spread like wildfire,” Roth responded, adding that “people will die.”
The crux of the Republican legislature’s complaint, which many of the conservative justices seemed heartily to agree with, is that Palm stepped outside the bounds of the authority given to her via a state law granting her emergency powers.
The Republicans, led by House Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald, further argued that the state’s top health officials had elbowed the legislature out of the process and were claiming emergency powers even broader than the governor’s.
In the six-one decision to take the case, the justices said that they’d be determining whether Palm had the authority to issue the extended stay-at-home order unilaterally under state law. And even if she did, they said they’d also examine whether the order to keep Wisconsinites at home, limit travel and shutter nonessential businesses was outside the bounds of the Health Department’s authority.
Justice Rebecca Dallet, a liberal, was the lone dissenting vote on taking up the case.
The court has a five-two conservative lean. Karofsky will not take her seat until August.
Even if legislative Republicans lose the case, their cause may have a second bite at the apple.
Two Wisconsin residents asked the court Monday to take up their case arguing that the stay-at-home order has infringed on their constitutional rights of religion and free speech. The lawsuit was filed against Department of Health Services officials, Attorney General Josh Kaul, Wisconsin State Capitol police chief David Erwin and a tranche of county officials.
