Courts

How Courts Work Or Don’t

A recent letter to the editor of this page criticized me for questioning a decision by the Wisconsin Supreme Court to reverse Governor Evers’ second emergency declaration regarding the spread of coronavirus. The writer opined that, as an attorney, I should know that a decision by the State’s highest court was the law of the land and the end of the discussion.

Unfortunately, or fortunately depending upon your point of view, there is no absolutes in the law. 

Laws passed by legislatures and administered by the executive branch are always, repeat always, subject to interpretation. There are usually, if not always, lots of lawyers available to interpret what is written in different ways and arrive at different conclusions about what the words really mean. No writer is ever able to convey a complex topic with absolute clarity. There is almost always room for argument and discussion. 

That is why we have courts to exercise the power to decide which of the competing interpretations of the written law will prevail. Even courts are not correct all of the time. That is why we have three layers of courts in Wisconsin. Trial courts in each county get the first shot at finding the correct interpretation. The losing side in the trial court, then gets to appeal to the Court of Appeals in their district. The Court of Appeals then gets its shot at telling the parties and the trial court which interpretation is correct. That court may or may not get it right. 

Whoever loses in the Court of Appeals then gets to ask the Wisconsin Supreme Court to take up the case. While the Court of Appeals has to take every case filed and render a decision, the state Supreme Court gets to pick and choose which cases it wants to hear. That decision usually depends on whether the issue presented by the case is of statewide importance and not controlled by an earlier decision by the Supreme Court that ruled on the same issue. 

When our Supreme Court agrees to take a case, it too tries to decide what the controlling law is and how that law applies to the facts of the case before it. It is the rare case indeed where all of the Justices on the state’s Supreme Court can agree on whether the case should be heard in the first place, what the controlling law is or what the correct interpretation of that law happens to be. In the end, decisions are usually based upon the Justice’s judicial philosophy, political persuasion and ability to persuade a majority of the other Justices on the Court to agree with her reasoning. 

The resulting majority decision from the Supreme Court controls the actions of the parties in that particular lawsuit for sure. It can also be argued that the decision also controls other cases that present the same facts. Beyond that, the application of a particular decision by the Court to a new or even slightly different set of facts, sets the process going all over again. 

If the state Supreme Court’s decision involves an issue of federal constitutional law, then the decision is subject to challenge and further appeals in the federal judicial system. Where the interpretation battles start all over again. 

With this understanding of how the judicial process works, or does not work, we are allowed to give an opinion that a given decision was decided incorrectly. 

Some decisions by state supreme courts are clearly incorrect and reversed by federal courts when they violate federal constitutional principles. Even decisions by the United States Supreme Court turn out to be wrong after the passage of time and changes in the will of the body politic. 

The infamous Dred Scott decision by the United States Supreme Court in 1857 is the classic, but not the only, example. In that 7-2 decision, the Court held that a slave, Dred Scott, who lived in a state where slavery was prohibited was not entitled to his freedom because African Americans could never be citizens of the United States. The Court further ruled that the Missouri Compromise of 1820 that declared certain states “slavery free” was unconstitutional.

Chief Justice Roger Taney wrote “…We think they (people of African ancestry) are…not included, and not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”

By any measure in today’s understanding of American citizenship, Taney’s words are clearly and unequivocally incorrect. 

So too were the decisions of the Wisconsin Supreme Court which overturned Governor Evers’ emergency declarations and occupancy limits in public establishments. They were based on interpretations of laws passed limiting the powers of the governor which disregarded the overriding need for prompt an effective action in the face of a public health emergency. 

The deaths resulting from premature actions by people eager to get back to “normal” who choose to go about their lives pretending there is no threat will be on the hands of Wisconsin Supreme Court majority who decided those cases.