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John Nichols: A lawless court OKs legislative lawbreaking

John Nichols: A lawless court OKs legislative lawbreaking

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Every Wisconsinite, no matter their ideology or partisanship, should be unsettled by the extreme to which the court majority has gone.

When the partisan majority on the Wisconsin Supreme Court upheld the political chicanery of Republican legislators, no one was surprised. Sadly, it was to be expected that the four justices who serve as rubber stamps for the right wing of the state Republican Party (and its major donors) would refuse to overturn “lame-duck” laws that were enacted last December to limit the authority of newly-elected Democratic Gov. Tony Evers and Democratic Attorney General Josh Kaul.

Stung by the defeat of Republican Gov. Scott Walker and every other Republican who sought statewide office in 2018, Republican leaders of the state Assembly and Senate refused to accept the results. They called an extraordinary session — during the transition period between the election and the day Evers would be inaugurated — for the purpose of thwarting the will of the voters.

An honest reading of the election results, and of the state Constitution, said that the “extraordinary session” organized by Assembly Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald — who retain control of the chambers thanks to gerrymandering and support from out-of-state special interests — was inappropriate. So the League of Women Voters of Wisconsin, Black Leaders Organizing for Communities and Disability Rights Wisconsin sued to block the power grab.

Unfortunately, the officially nonpartisan Supreme Court, which should serve as a check and balance on lawless legislators, is controlled by a majority of four partisans who have aligned themselves with the lawbreakers. On Friday, those four justices issued a convoluted ruling that essentially said their political cronies have “absolute discretion” to do as they please.

The clear-eyed statement from the bench came in the form of a dissent by the three justices who refused to make the court a rubber stamp for the Legislature. “The Legislature unconstitutionally met in an ‘extraordinary session’ in December 2018 and therefore (the measures limiting the authority of the governor and the attorney general) are void,” wrote Justice Rebecca Dallet, who explained that, “in order to uphold the constitutionality of the December 2018 extraordinary session, the majority opinion subverts the plain text of Article IV, Section 11 of the Wisconsin Constitution.”

That section is clear, noted Dallet. It constrains the Legislature from meeting except under two circumstances: (1) "at such time as shall be provided by law," and (2) "unless convened by the governor in special session."

Neither constitutional standard was met.

“It is,” Dallet wrote, “undisputed that at the time of its passage, Article IV, Section 11 was understood to place limits on legislative power.”

So how did the majority “justify” its decision?

“In its analysis of the meaning of Article IV, Section 11,”explained Dallet, “the majority opinion dismisses the importance of the intent of the drafters.”

Every Wisconsinite, no matter their ideology or partisanship, should be unsettled by the extreme to which the court majority has gone. The four justices who sided with the Legislature did not act as “originalists” or “constitutional conservatives.” Rather, they rejected the original intent of the drafters of the state Constitution in order to permit legislative lawbreaking. That’s not conservatism, that’s ugliest form of political cronyism.

John Nichols is associate editor of The Capital Times. and @NicholsUprising. 

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