A Judicial Gift to Organized Labor

A liberal Wisconsin judge shamelessly manufactured a new argument in overturning Scott Walker’s famous union law.

‘Y ou don’t respect precedent!” they yell.

“You use the courts to enact laws you can’t get passed in the legislature!” they scream.

“The judges are tools of big-money interests!” they wail.

Of course, “they” in this scenario are the progressives beleaguered by the U.S. Supreme Court’s 2022 decision overturning the constitutional right to abortion in Roe v. Wade. But if you ask these same people about a recent Wisconsin court case overturning settled precedent, they will likely all take a cue from Homer Simpson and back slowly away into a bush.

Earlier this week in Wisconsin, a Dane County judge declared former Republican governor Scott Walker’s signature accomplishment, the Act 10 law, which drastically reduced the influence of public sector unions in the state, to be unconstitutional. Amid much political tumult in 2011, the law virtually eliminated collective bargaining for the vast majority of government employees and required them to pay more for their own health care and retirement benefits, which helped the state close a multibillion-dollar budget deficit.

Soon after Walker introduced the plan, national news outlets descended on Wisconsin as angry protesters occupied the state capitol building. Weeks later, with the media still milling around, Democratic senators fled to Illinois to avoid a vote on Walker’s plan, prank callers got through to Walker by pretending to be one of the Koch brothers, and a number of elected officials (including Walker) faced recall elections as a result of their support of the law.

Despite all the tumult, the law worked smoothly for 13 years. And yet a circuit court judge based in the liberal stronghold of Madison has now unilaterally decided it violates equal protections afforded by the state constitution. This wasn’t Judge Jacob Frost’s first encounter with Act 10: He appears to have signed the 2011 recall petition against Walker while only a year out of law school.

Yet Frost’s conscience over his anti–Act 10 activism was sufficiently unencumbered for him to decide he was still fit to strike down the statute, which has been upheld time after time in state courts. (Remember when liberals demanded that Justice Samuel Alito recuse himself from certain January 6 cases because his wife flew a flag?)

Ironically, while protesters prowled downtown Madison in 2011, beating drums and blowing air horns, their favorite chant was “This is what democracy looks like!” Thirteen years later, they believe “democracy” looks like one of 16 circuit court judges in the most liberal of Wisconsin’s 72 counties striking down a duly passed law almost a decade and a half after it went into effect.

Frost, appointed to the local circuit court in 2020 by Democratic governor Tony Evers, used a section of Act 10 that exempted certain public-safety professions from the law as a pretense for suspending the entire statute.

“Nobody could provide this Court an explanation that reasonably showed why municipal police and fire and State Troopers are considered public safety employees, but Capitol Police, UW Police and conservation wardens, who have the same authority and do the same work, are not,” Frost said earlier this year in deciding to take the case. In his opinion this week, he added that he “cannot decide who should be included or excluded, absent guidance from the Legislature.”

Of course, it is not up to a judge to mull over the wisdom of leaving some workers out of the law while including others. There has been no confusion over who is included and who is not, as, again, the framework has been working without issue for 13 years. State law frequently ascribes different protections and benefits to different government employees depending on their duties and the risk they take in carrying out those duties. (For instance, state law provides enhanced penalties for assault and battery against law enforcement officers, judges, school employees, and the like.)

The split between public-safety employees and other employees was well known at the time of the bill’s passage, and the definition of “public-safety employee” was unambiguous. At the time, Walker said he decided to exempt cops and firefighters because he anticipated the upcoming protests and couldn’t risk job actions and walkouts by the people tasked with keeping citizens safe.

Ultimately, the public approved of Walker’s actions. Not only did he win his recall election in 2012, he won again in 2014. Marquette University Law School took four polls between 2012 and 2014, and Wisconsin residents favored keeping Act 10’s union restrictions in place in every poll; in October 2014, respondents favored retaining Walker’s union law by a margin of ten percentage points (52 percent to 42 percent).

The public understood that government unionization was a corrupt enterprise; unions could force state and local workers to pay dues, then use those dues to help elect friendly politicians who would grant them extremely favorable labor contracts. Public sector unionization is effectively a money pump shifting taxpayer dollars into Democratic campaigns — they just needed taxpayer-funded employees from whose paychecks they could deduct dues.

As the state convulsed for almost two years, Walker’s union restrictions wound their way through the courts, oftentimes being struck down by Madison judges for equally specious reasons. But time after time, the law was reinstated by higher courts. In 2014, the state supreme court upheld the law, and in 2019, a federal judge rejected an attempt to overturn it.

So why is this lawsuit different from all the ones that have come before? Well, the Donald Trump years have ravaged the conservative majority on the state supreme court. Last year, liberal judge Janet Protasiewicz won a seat on the court, flipping it to a 4–3 liberal majority. The lawsuit seeking to overturn Act 10 was then quickly filed, as unions now know they can use the court as a super-legislature to override the will of the Wisconsin governor, assembly, and senate.

(Protasiewicz once said she would consider recusing herself from an Act 10 lawsuit given that she, too, signed the recall petition against Walker, marched against the law, and called it “unconstitutional,” but like a president promising he won’t pardon his felonious son, that’s just the sort of empty promise one makes during a campaign. Of course she will participate in the Act 10 case.)

So if the key to real estate is location, location, location, then the key to lawsuits is timing, timing, timing.

Fortunately for Republicans, they still have a chance to plead their case to voters. There is a supreme court election coming up in April 2025 to replace retiring liberal justice Ann Walsh Bradley, and given that the majority on the court will hang in the balance, that race will likely become a referendum on Act 10. If a conservative wins, it will likely remain alive. If a liberal wins, it might be time to read its last rites.

Legislative Republicans have said they will immediately appeal the latest ruling. But if Frost’s preposterous act of judicial activism is upheld, Wisconsin residents can once again look forward to government unions pumping millions of dollars of taxpayers’ money into campaigns to elect union sycophants like Protasiewicz. The public can look forward to paying billions more in state and local taxes to pad the benefits of government-union workers, who have gotten along just fine in a post–Act 10 world. By some reliable estimates, Act 10 has saved taxpayers nearly $17 billion since it was enacted; its death would mean the demise of those savings in the future.

What is still alive is the Democrats’ shamelessness in manufacturing phantom laws to achieve a political result from the courts. At the national level, they can continue to complain about “respecting precedent” and “judicial activism,” but as is always the case, every one of their accusations is simply a confession.