This Dissent Over Mask Mandates Explains Why Tyranny Wins When Judges Won’t Act

This Dissent Over Mask Mandates Explains Why Tyranny Wins When Judges Won’t Act

The courts have one job, and when they don't do it, we all suffer.
Kylee Zempel
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Another day, another “masks required” sign on a business in Dane County, Wisconsin, thanks to a sweeping mask mandate handed down from the unelected health bureaucrats on high — and now thanks also to the Wisconsin Supreme Court, which just refused to do anything about it.

Despite the seven-day death average for the county remaining steady at zero since the middle of May, Janel Heinrich, the director of public health in Madison and Dane County, decreed that masks were once again mandatory. This wasn’t just for the unvaccinated or the vulnerable. No, in Dane County, one of the most vaccinated counties in the entire country, everybody was ordered to wear a mask in all indoor settings, including the vaccinated and toddlers as young as 2 years old.

A petition for leave and injunctive relief was filed with the Wisconsin Supreme Court, but on a 4-3 decision, the court denied the petition and dismissed the motion at the end of August. Supreme Court Justice Annette Ziegler sharply disagreed.

Her dissent is worth reading in its entirety, not only because it’s short and pointed, but because it so aptly applies to other cases around the country, many related to the Wuhan virus. Almighty bureaucrats have gotten all too comfortable expanding their power by creating onerous and arbitrary laws they have no business making, flexing their muscles on ordinary citizens who are powerless to meaningfully resist, then watching the courts look the other way instead of performing their responsibility.

In fact, that was Ziegler’s main point: “I dissent because, once again, this court abdicates its responsibility to ‘say what the law is.'” Take a moment to read her dissent (citations have been removed, but you can find them in the original document here):

I dissent because, once again, this court abdicates its responsibility to ‘say what the law is.’ Instead, it presumably expects a trial court and court of appeals to do our job. Because there are no factual disputes at issue, this original action involves only a declaration of the law. The petition before the court addresses pervasive, fundamental, statutory, and constitutional concerns that should be resolved by our court. I would not dodge that responsibility.

Respondents argue that local health authorities, who are unelected and largely shielded from democratic accountability, have authority under Wis. Stat. § 252.03 to regulate across wide swaths of society the personal decisions of those engaging in public life. It is undisputed that health authorities in Dane County have mandated that all individuals age two and older don facial coverings whenever they enter an enclosed public space. In support of this order, respondents cite general statutory language providing local health officials with apparent authority to do what is ‘necessary to prevent, suppress and control communicable diseases’ and what ‘is reasonable and necessary for the prevention and suppression of disease.’ Yet only two months ago we determined that local health officials did not have the authority to close schools because that authority was not specifically included in section 252.03. We stated ‘[b]ecause the legislature expressly granted local health officers discrete powers under Wis. Stat. § 252.03 but omitted the power to close schools, local health officers do not possess that power.’ In other words, ‘the legislature did not specifically confer [that] power.’ Notably, a reference to ‘facial coverings’ or ‘masks’ cannot be found in section 252.03.

The parties do not dispute that local health officials in Dane County have issued a mask mandate. The sole question that remains is whether those officials have the authority to issue the mandate. The issue presented is of statewide significance.

In Wisconsin, we are the court of last resort. We have been ‘designated by the constitution and the legislature as a law-declaring court.’ But today we leave it to a circuit court, and then the court of appeals, to declare what the law is. By the time we have the opportunity to fulfil our constitutional role, mandates and orders may come and go, and the public may be left in substantial uncertainty. This case, in fact, could become moot by the time it may wind its way through the system to be next in front of our court. All the while, personal liberties are implicated, without clear guidance from this state’s highest court. Old adages remain true today: justice delayed is justice denied.

For the foregoing reasons, I respectfully dissent.

The court had one job, to “say what the law is,” as Ziegler noted, citing Marbury v. Madison. Because it didn’t, it delayed justice and therefore denied it. Not only did the Supreme Court effectively sentence healthy Dane County residents to keep walking around with masks covering their faces, it also emboldened the unelected health czars who issued an unscientific and invasive order and got away with it.

The chief justice was right: “All the while, personal liberties are implicated, without clear guidance from this state’s highest court.” But Ziegler didn’t go quite far enough when she said, “The issue presented is of statewide significance.” This issue is of national significance. Courts across the country — all the way up to the U.S. Supreme Court — have a duty not only to interpret the law, but to articulate it when a non-lawmaker pretends to be a legislator.

They must not shirk their responsibility to “say what the law is” when governors insist worship is dangerous, when the president deputizes Big Tech to decide what is acceptable speech, or when county health tyrants strap masks onto toddlers.

When the court is silent on these matters, as the Wisconsin Supreme Court was over this mask order, the unelected bullies with the most power get a little more confident telling the hardworking citizens who pay their salaries what do to. The next time some head honcho in a healthy Wisconsin county gets the bright idea that he can gin up an unconstitutional law out of thin air, he’ll have silence from the state’s high court egging him on, and Wisconsinites will once again pay the price.

The courts have one job, and when they don’t do it, we all suffer.

Kylee Zempel is an assistant editor at The Federalist. Follow her on Twitter @kyleezempel.
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