Wisconsin Court's Safer-At-Home Ruling Considered Narrow Technicalities Instead Of Public Health

May 15, 2020

The Wisconsin Supreme Court struck down the state’s safer-at-home order in a 4-3 decision, effectively removing most statewide orders concerning the coronavirus lockdown. The court met virtually as it delivered the ruling, which caused a lot of confusion. Some bars opened almost immediately after the ruling, despite some local safer-at-home orders already in place.

Since then, municipalities around Wisconsin have been scrambling to clarify or create their own safer-at-home orders. There remains a lot of uncertainty about what the state Supreme Court’s ruling means for people living in different communities, but it certainly means an end to the statewide order (with the exception of school closures).

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"To have a court step in and say, 'Well, actually, the public health department can't enforce any laws to address the pandemic,' that's unusual."

The court's decision is irregular, in light of what's historically happened during pandemics. 

"Generally speaking, looking back in the past, both state and federal courts have given states and their police powers quite a lot of room to deal with pandemics similar to this one. To have a court step in and say, ‘Well, actually, the public health department can’t enforce any laws to address the pandemic,’ that’s unusual looking back at the previous governmental actions to address issues like this," says Paul Nolette, an associate professor and chair of the Department of Political Science at Marquette University.

The court's decision, according to Nolette, was based on a narrow interpretation of whether or not the state Department of Health Services Secretary-designee Andrea Palm was allowed to enforce the safer-at-home order. The decision hinged on whether or not it was an "order" versus a "rule," the latter meaning it would have to go through the Legislature — a process the justices admitted would likely take weeks amid the global crisis. 

"If you read the majority opinion, it's almost like you don't get a sense that there is an emergency."

Now, the decision on whether or not to continue safer-at-home measures is in the hands of individual municipalities, creating a patchwork of competing legislation and enforcement. The court's decision did not address public health concerns and made little mention of the pandemic. 

"You get a sense of how serious of an emergency it is when the court itself has to adjust its procedures pretty dramatically ... [The decision] reads very legalistically. The whole decision including the dissents is 161 pages, so it's pretty lengthy. But if you read the majority opinion, it's almost like you don't get a sense that there is an emergency," says Nolette. 

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