The Contrarian Conservative: Justice Hagedorn Says Decision to Kill Safer-at-Home Was ‘Not Grounded In Law’

In a surprise, court’s newest coservative sided with progressive justices Ann Bradley Walsh and Rebecca Dallet to support the stay-home order.

Even as the Wisconsin Supreme Court’s conservative majority struck down the state’s stay-home order Wednesday, conservative Justice Brian Hagedorn crossed ideological lines to side with liberal justices Ann Walsh Bradley and Rebecca Dallet in defense of the order.

Hagedorn was scathing in his critiques of his conservative colleagues and the Legislature’s Republican leaders. 

He argued the Legislature had no standing to bring the case in the first place and that the decision was “not grounded in law.” The Republican case hinged upon a flimsy interpretation of a law — that the Legislature itself passed — that grants the secretary of the state Department of Health Services extremely broad authority to act swiftly in public health emergencies.

“The legislature may have buyer’s remorse for the breadth of discretion it gave to DHS in Wis. Stat. § 252.02,” Hagedorn wrote in his dissent. “But those are the laws it drafted; we must read them faithfully whether we like them or not.”

“We are not here to do freewheeling constitutional theory,” he added. “We are allowing the legislature to argue its own laws are unconstitutional, a legal claim it has no authority to make.”

RELATED: An overwhelming majority of Wisconsinites still supported the stay-home order.

The coronavirus pandemic had killed 421 Wisconsinites and infected at least 10,902 as of Wednesday night, according to DHS data. The court’s decision leaves no time for a replacement stay-home order to be drafted by the Legislature and Gov. Tony Evers, meaning the state’s floodgates were immediately opened. It could be weeks before a replacement passes through the legislative process.

“Epidemics don’t always give you a two-week heads up on their next move,” Hagedorn wrote.

Individual municipalities and counties can instate their own orders in the meantime; Dane County immediately enacted one after the ruling.

The court’s conservative justices ripped into Hagedorn in their majority opinions.

“We swore to uphold the Wisconsin Constitution,” wrote conservative Justice Daniel Kelly, who lost his re-election effort last month. “He’s free to join in anytime he wishes.”

This post has been updated to correct a misspelled name.

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