The Ugly Rhetoric of Justice Rebecca Grassl Bradley

In many of her decisions, Wisconsin Supreme Court Justice Rebecca Bradley shows a disturbing level of vindictiveness and hostility to anyone who disagrees with her. Consider a case called Becker v. Dane County. This case challenged the ability of the combined Madison and Dane County health departments to issue public health orders.

In early July, by a vote of 4 to 3, the state Supreme Court ruled that local public health officers have that authority. Bradley was in the three-justice minority and wrote the dissent.

One does not have to read far in Justice Bradley’s dissent to discover her dislike of Janel Heinrich, the director of Public Health for Madison & Dane County. In fact, she entitles the second section of her dissent “Heinrich’s Tyranny,” the first of 10 uses of that term. The first sentence in her Section B asserts that:

Heinrich has exercised dictatorial powers for nearly two years, in contrast with her peers in other counties.

In a footnote, she claims that this set of mandates was unnecessary.

The majority insinuates the mandates imposed by Heinrich’s orders were necessary, but the COVID-19 response by the remaining counties in the state belies the majority’s misperception of reality.

The chart below suggests that residents of other Wisconsin counties paid the price for those counties’ less assertive response to COVID-19. The chart compares the number of covid deaths per 100,000 residents in Dane and Milwaukee counties with the state and the Republican-leaning counties of Waukesha, Washington and Ozaukee since the start of the pandemic in 2020.

On a per-capita basis, Dane County’s covid death rate was less than 40% of Wisconsin’s. Put another way, if Dane County had the same death rate as Wisconsin, an additional 9,000 Dane residents would have died.

This correlation, of course, does not prove causality. Another factor is the demographics of Dane and the other counties. From education levels to poverty, Dane’s demographics point to lower death rates. But demographics are not destiny. Milwaukee County’s higher poverty rate and lower average education rate might lead one to expect that the death rate would be higher in Milwaukee County than in Waukesha and the other suburban counties. In fact, Milwaukee County had a lower per capita death rate than statewide and lower than in Waukesha and Washington counties.

Why would a series of steps aimed at reducing the spread of a highly infectious and dangerous disease raise cries of “autocracy, dictatorship, and despotism?” Or lead to the claim that “The majority abandons its station as a bulwark of liberty?”

Justice Rebecca Bradley bases her claim on a theory called the “non-delegation doctrine.” This doctrine argues that for liberty to persist it is vital that legislatures don’t delegate their powers to the executive branch. If this doctrine applied at the federal level, there would be no EPA or OSHA, and at the state level no DNR. It seems like crackpottery to me.

There are many reasons why legislatures would want to leave the detailed implementation of their laws to others. First, the time requirements of undertaking it themselves could be overwhelming. Second, in most cases they may lack the necessary expertise. Thus, they choose to allow agencies staffed with expertise in the various fields to fill in the details. Devotees of the non-delegation theory regard this as surrendering the legislative process to the agency.

The COVID-19 pandemic illustrates another advantage of delegating the details: the ability to act quickly. While the Wisconsin Legislature did nothing to try to protect the public from the disease, state and local health officials stepped in with their orders. In addition, the bipartisan state elections commission acted to give voters a safer method of voting with drop boxes and advised election officials to drop the dangerous requirement that long-term care facilities allow two officials to visit these facilities.

Yet, the non-delegation doctrine has become popular among those in the right-wing bubble, especially among members of the Federalist Society. In her dissent, Bradley establishes herself as a true believer, with comments such as “Enforcing the non-delegation principle is vital to the maintenance of free government but the majority eviscerates it” or “This case involves the power to make the rules by which the people will be bound, a power the people have entrusted to state and local legislatures lone.” Referring to Heinrich, Bradley writes:

Lacking any constitutional foundation, her usurped authority “stand[s] upon pillars of salt and pillars of sand” and nothing the majority says can fortify it. The majority abandons its station as a bulwark of liberty.

Adherents to the non-delegation doctrine often claim that it stems from the Constitution. This apparently lies behind Bradley’s accusation against one of her colleagues, who was elected as a conservative: “Justice Hagedorn apparently believes statutes take precedence over the constitution. … even though the people never consented.” Yet nowhere does the Constitution say that the legislature cannot assign the task of implementing legislation to the executive.

Article I of the United States Constitution states that all legislative powers granted by the Constitution are vested in Congress. However, it does not require the legislature to take on the burden of writing the details needed to implement the legislation.

At one point, Bradley sums up her objections this way: “This case involves the power to make the rules by which the people will be bound, a power the people have entrusted to state and local legislatures alone.” Early on, she accuses Heinrich, who actually reports to two legislative bodies–the Dane County board and the Madison Common Council–of being a dictator. If a consensus of Dane County voters disagreed with her actions, they would be free to go to either of those bodies. Thus, delegation is no threat to democracy.

Bradley’s willingness to slander a public servant is bad enough. Her devotion to a crackpot theory of government makes it worse. However, the two go together. It’s what happens when someone is sure they have the truth and have no patience with those who disagree. Rather than empower the Legislature the non-delegation theory would hobble the ability of legislators to accomplish their goals.