Walker’s Battle with the Judiciary

While it was notable that Dane County Judge Maryann Sumi issued an injunction (.PDF) preventing recent anti-union legislation in Wisconsin a week and a half ago, it was even more notable that Governor Scott Walker ignored her order and began implementing it. Last night, Judge Sumi again enjoined the implementation of the law. Talking Points Memo has some interesting analysis, raising the issue of whether the Judge has declared that the law never went into effect or whether she exclusively enjoined implementation of the law.

The nuances of the order are important, but I think the politics are even more interesting. We’ve heard the activist/unaccountable judges trope from the Right for a very long time. The Act’s proponents may use Judge Sumi’s actions to make arguments that unions only derive their power from protection by the courts, and that pro-labor policies do not reflect the will of the electorate. But the situation in Wisconsin confounds some of the typical assumptions upon which that trope relies. Judge Sumi is elected, and issuing a TRO is not exactly striking down a law or making up a new rule. It is a procedural method by which we allow our legal system to work– to prevent irreparable harm while the issues at hand are litigated. The lesson from this mess, I gather, is that the labor community and the Democrats in Wisconsin are going to have to be very careful in their rhetoric going forward. They should call out Governor Walker for flouting an elected judge and the law. But the complexity of the difference between elected and unelected judges may be lost on the American public, and unions may want to be careful about relying too heavily on the judiciary to protect their interests. The rights of unions is a battle beyond Act 10 in Wisconsin, and beyond this piece of litigation. For unions to win in the long-run (or, at least regain the ground they have lost), they are going to need to win the support of all institutions: courts, legislatures, executives, and, well, the people.