Althouse: When a Dane County Judge throws out the Wisconsin collective bargaining reform law, should progressives or conservatives celebrate?

September 15, 2012

When a Dane County Judge throws out the Wisconsin collective bargaining reform law, should progressives or conservatives celebrate?

It's not obvious, though the protesters at the Capitol yesterday — they were there to support the Chicago teachers strike — exulted at the news.

If you step back for the long view — like between now and November 6th — and consider the near certainty that the decision will be reversed on appeal, the spectacle of liberal judicial activism is good for the conservative cause.

(Here's some info on the case, if you're not familiar with it.)

52 comments:

Big Mike said...: I think that it's a serious mistake to ask whether it's good for liberals or good for conservatives.

From where I sit it's bad for the citizens of Wisconsin.; 9/15/12, 11:49 AM
Shouting Thomas said...: Have to go to a gig, Althouse. So, I'll have to read later.

Can you elaborate on why you believe this decision will be reversed?; 9/15/12, 11:51 AM
kentuckyliz said...: I was kind of wondering if the ME riots made the Chi teachers strike look bad. The optics.; 9/15/12, 11:55 AM
SteveR said...: A ruling by a judge in Dane County,in the long run, will only benefit the "conservative" position. By now, its clear to most folks what the public sector unions are about. Its unsustainable and its going to change.; 9/15/12, 11:55 AM
Alex said...: Much sound & fury signifying nothing.; 9/15/12, 11:57 AM
Tyrone Slothrop said...: When Judge Colas's ruling is reversed, will there be any repercussions to his career? There should be a three strikes law for judges-- three reversals and you're out. That would temper judicial activism, and should be welcomed by both the right and left.; 9/15/12, 11:57 AM
garage mahal said...: Can you elaborate on why you believe this decision will be reversed?

Because our hyper partisan Republican Attorney General will decide which Republican court he wants the case heard in. And, of course, that is NOT judicial activism.; 9/15/12, 11:58 AM
Tyrone Slothrop said...: garage mahal said...

Can you elaborate on why you believe this decision will be reversed?

Because our hyper partisan Republican Attorney General will decide which Republican court he wants the case heard in. And, of course, that is NOT judicial activism.

You're killing me garage. Stop me if I misinterpret what you said, but are you maintaining that Colas, the Dane County judge, is entirely unswayed by partisan politics? Pull the other one.; 9/15/12, 12:01 PM
rhhardin said...: The labor law makes a lawless exception to a rule of law.

That rule being: Y and Z can't join forces to claim any right against X that they don't have individually.

The lawless exception being that if X is a private employer and Y and Z are members of a union, then they can force X to negotiate with them whether or not there's a contractual relation between them and X.

This decision carves out a new lawless exception for public employers, calling it a right of free association for Y and Z.; 9/15/12, 12:02 PM
n.n said...: Traditionally, neither progressives nor conservatives would celebrate. Both groups understood that public workers should not be permitted to hold the government hostage, and that public unions should not be permitted to bypass the representative process in order to extort concessions from taxpayers.; 9/15/12, 12:17 PM
cubanbob said...: After the election the WI republicans will have a perfect opportunity to pass a right to work act and just to spike the ball impeach and remove judge Colas. Indeed the more outrages the public sector unions pull the easier it will be for President Romney and the new republican congress to pass a national right to work act along with severely curbing the Wagner Act. I am not a law professor, Anne is, and if she believes the appelate courts will strick down Colas's ruling, she is probably right.; 9/15/12, 12:22 PM
garage mahal said...: You're killing me garage. Stop me if I misinterpret what you said, but are you maintaining that Colas, the Dane County judge, is entirely unswayed by partisan politics? Pull the other one.

So then argue why it was a partisan decision by Colas. Or "liberal judicial activism" as Althouse put it. Why is it a certainty that it will be overturned? Because it's headed to a court run by Republicans? Walker has lost every case that didn't have Gableman or Prosser on it.; 9/15/12, 12:23 PM
Alex said...: Unfortunately the lefty judge is right. The Wagner act protects the unions.; 9/15/12, 12:24 PM
Alex said...: First step - roll back all of FDR's New Deal. Second step - roll back LBJ's Great Society. Third step - roll back Obama's health care and other boondoggles.; 9/15/12, 12:25 PM
wildswan said...: In the last election the Democrats had no plan for balancing the budget. They still don't. They lost. So why is this still going on? Why don't Democrats think you have to balance the budget? Why don't they think you have to respect elections - the will of the people? Notice that the US has had its credit rating lowered again because Democrat Obama is inflating the currency to improve his election chances. The whole country is to suffer for Obama's election but the white mice press says nothing. And similarly the whole of Wisconsin is to suffer unbalanced budgets solely in order to get union support for the Democrats. This is almost unbelievable. Do they really think it will work? or are they so desperate that anything is worth trying? Tune in tommorrow; 9/15/12, 12:33 PM
Anonymous said...: This is yet another example of why judicial review of the constitutionality of statute should be heard by a panel of judges elected statewide, not subject to review by a single judge from a non-representative county.; 9/15/12, 12:33 PM
Anonymous said...: Alex,

I've understood that the Wagner Act does not apply to federal, state or local government employees.; 9/15/12, 12:37 PM
test said...: Alex said...
Unfortunately the lefty judge is right. The Wagner act protects the unions.

The judge struck it down because the state employees have a constitutional right to collective bargaining. So which article of the state constitution is the Wagner Act in?; 9/15/12, 12:39 PM
Alex said...: Does Wisconsin have a "Wagner Act" for all unions?; 9/15/12, 12:40 PM
dbp said...: "Because our hyper partisan Republican Attorney General will decide which Republican court he wants the case heard in. And, of course, that is NOT judicial activism."

Well, the AG isn't a judge and therefore can't engage in "judicial activism".; 9/15/12, 12:43 PM
Curious George said...: The gift that keeps on giving. Bad news for Tammy Baldwin. Of course, she is too stupid to know it.; 9/15/12, 12:48 PM
garage mahal said...: The judge struck it down because the state employees have a constitutional right to collective bargaining

Actually no, I don't think he did.

Colas: "It is undisputed that there is no constitutional right to collective bargaining," Judge Colas wrote, but once the government offers the right to associate and speak through forming a union, "it may not make the surrender or restriction of a constitutional right a condition of that privilege."

Non-union workers can negotiate for pay and benefits, but union members cannot, solely because they are a member of a union and who they decide to associate with. Thus creating two different classes of people.; 9/15/12, 12:50 PM
garage mahal said...: Two different classes of employees a better way of interpreting that.; 9/15/12, 12:52 PM
Tom Spaulding said...: Any system where the taxpayer writing the check gets NO seat at the table when it is determined :

1) How big a check to write
2) What the ROI that check will get them
3) What metrics will be used to measure merit and performance
4) The ability to get rid of the bad hires

...is clearly un-constitutional.; 9/15/12, 1:03 PM
Zach said...: So is it just impossible to get a fair trial in Wisconsin on some issues? The history of this law suggests that some judges see themselves as footsoldiers of their respective parties, eager to rubberstamp any argument that gets put in front of them.

Do lawyers even brief these cases?; 9/15/12, 1:12 PM
edutcher said...: I have a feeling this will play out like Recall: The Sequel.

Walker's reforms are popular and making localities solvent.; 9/15/12, 1:16 PM
Will Richardson said...: I note that under the reasoning applied in this judgment, the Hatch Act, and state analogs, prohibiting electioneering by government employees would be unconstitutional as well.; 9/15/12, 1:31 PM
shiloh said...: WI back and forth on the union busting bill notwithstanding, again if hatred of Obama isn't enough to fire up the base, nothing will.

The irony that Romney's pick of Ryan for v-p pretty much locks up WI for Obama.

btw, it might be wise for Willard and Ryan to get try to get on the same page politically, if possible! Just a thought.; 9/15/12, 1:37 PM
Unknown said...: garage mahal said:

"Because our hyper partisan Republican Attorney General will decide which Republican court he wants the case heard in. And, of course, that is NOT judicial activism."

Wisconsin must have a very unusual judicial system, then. In most judicial systems in this country, there's no discretion to choose among courts of appeal. The location of the court or, more rarely, the subject matter of the case (e.g., patent cases) dictate a single appropriate court for appeals.; 9/15/12, 1:40 PM
Methadras said...: It's the idea that judicial activism allows these knee-jerk decisions to be made to begin with only have them overturned on appeal as a means of rectifying the error to begin with. In California this takes place at the 9th circuit only to have SCOTUS overturn them. It was a bill voted on by legislators, not under duress and signed into law legally. No side should celebrate seeing this kabuki make a mockery of representative politics.; 9/15/12, 1:45 PM
Alex said...: interesting that shiloh talks about hatred of Obama, but doesn't talk about the hatred towards all Republicans you saw at the DNC.

4 legs = good
2 legs = bad.

Shiloh should read Animal Farm.; 9/15/12, 1:51 PM
Automatic_Wing said...: Non-union workers can negotiate for pay and benefits, but union members cannot, solely because they are a member of a union and who they decide to associate with. Thus creating two different classes of people.

Uh huh. Guess who else can't negotiate for pay and benefits? Yep, Federal workers. Someone better file a lawsuit real quick to rectify this injustice.; 9/15/12, 1:55 PM
garage mahal said...: Wisconsin must have a very unusual judicial system, then. In most judicial systems in this country, there's no discretion to choose among courts of appeal.

Act 61 passed by the legislature gives them the latitude to pick from the four courts of appeals that it will petition to. And as I understand, it can be any district except the one containing the county from which the appeal is taken. So if you lose in Dane County, it can't be appealed again in Dane County. But I don't know if that includes the WI Supreme Court? Maybe Prof Althouse or Prof Jacobson could weigh in, I'm not a law expert.; 9/15/12, 1:58 PM
neomom said...: Shouldn't the facts that Act 10 has already gotten through the WI Supreme Court and a Federal District Court kind of be an indicator that this ruling will be reversed.

On a separate note, what crazy system allows a county circuit judge to negate a state law?; 9/15/12, 1:58 PM
Alex said...: neomom - the left just rolls that way, you know being unlawful renegades.; 9/15/12, 1:59 PM
garage mahal said...: Uh huh. Guess who else can't negotiate for pay and benefits?

If I'm governor, I will deem any member of the Tea Party who works for the government cannot negotiate with the state for pay/benefits. Act 10 allows for that discrimination, it's just not worded that way in the bill to discriminate against a Tea Party member. Only unions.

But I, as dictator, could surely modify it.

I'M PROTECTING THE TAXPAYER!; 9/15/12, 2:03 PM
Dr Weevil said...: The sad thing is that garage mahal would do such a thing if he were governor, and doesn't have a clue as to what kind of utter scum that makes him.; 9/15/12, 2:27 PM
garage mahal said...: The sad thing is that garage mahal would do such a thing if he were governor, and doesn't have a clue as to what kind of utter scum that makes him.

Hey, I need the tools to protect the taxpayer and balance the budget. This is for you're own good.; 9/15/12, 2:35 PM
Tom Spaulding said...: This is for you're own good.

BRB, thanking a teacher...; 9/15/12, 2:43 PM
Dante said...: You ought to get a protest around the judge's home.

The extent of meddling by judges is reprehensible, yet somehow they get away with some kind of anonymity. Unlike the legislature.; 9/15/12, 3:15 PM
campy said...: interesting that shiloh talks about hatred of Obama, but doesn't talk about the hatred towards all Republicans you saw at the DNC.

Republicans deserve to be hated. They're stupid and try to hurt people.

President Obama is a Great Leader. He is leading us to an unprecedented era of peace, prosperity and harmony among the races. He deserves be Worshiped as a God.; 9/15/12, 3:17 PM
Michael K said...: " garage mahal said...
Uh huh. Guess who else can't negotiate for pay and benefits?

If I'm governor, I will deem any member of the Tea Party who works for the government cannot negotiate with the state for pay/benefits. Act 10 allows for that discrimination, it's just not worded that way in the bill to discriminate against a Tea Party member. Only unions. "

I don't know a TEA Party member who would be interested in negotiating for pay and benefits with the government. I don't think you have any idea of what TEA Party members believe.

The TEA Party is about the elections and removing those who negotiate pay and benefits with government employee unions.; 9/15/12, 3:25 PM
Michelle Dulak Thomson said...: garage mahal,

Non-union workers can negotiate for pay and benefits, but union members cannot, solely because they are a member of a union and who they decide to associate with. Thus creating two different classes of people.

(1) As I understand it, public-sector unions in WI can still bargain collectively over pay, but not over benefits and work conditions;

(2) Nothing prohibits a union member from negotiating over pay and benefits as an individual, just as can an employee who doesn't belong to a union. There aren't "two classes of employees" here; in fact, there is more nearly one class than there was pre-Walker.; 9/15/12, 3:26 PM
Curious George said...: "garage mahal said...
Two different classes of employees a better way of interpreting that."

No, you were right the first time.; 9/15/12, 3:43 PM
Dr Weevil said...: I'm sure it's never even occurred to Governor Walker to try to pay people less based on the party they belong to, and it would never have occurred to me if I hadn't been trying to think of some equivalent to garage mahal's suggestion about paying Tea Partiers less. It's interesting that such an idea did occur to him.; 9/15/12, 3:46 PM
garage mahal said...: @Michelle Dulak Thomson

Wrong on both accounts. Act 10 prohibits base wage increases above the cost of living or negotiating about other terms of employment to any employee that belongs to a union. Limitations that do not apply to employees who are not represented by a union. It was also written as prohibiting automatic payroll deductions for union dues, but only because the dues go to a labor union. That part was struck by a federal court. That, and the requirement of annual recertification.; 9/15/12, 3:55 PM
Tom Spaulding said...: Governor Mahal's indictments are just moments away.

I swear it on Thistle's Honor.; 9/15/12, 3:59 PM
Carnifex said...: This is why I have been against judicial activism from the start. You get decisions like Roe v. Wade that do more to divide than unite the country. Every law should just be decided as constitutional, or non-constitutional using the words as written by the legislature. Anything else is a perversion of the way our government was founded.

If Roe v. Wade had been judged a states right issue, we would have some states where it was legal, and some states where it wasn't, so you wouldn't have to suffer under either onus according to your own personal beliefs.

Instead we get judges like the Dread Traitor Roberts, who just make stuff up out of whole cloth fabrication. Regardless, a written constitution with a base of written laws means absolutely nothing if the judges just make shit up as they go along.; 9/15/12, 4:32 PM
Seeing Red said...: By all means - have that judge tell the school district I don't care if you saved $800,000 you need to return the IPads.; 9/15/12, 4:51 PM
Tom Spaulding said...: It was also written as prohibiting automatic payroll deductions for union dues, but only because the dues go to a labor union.

I should pay for the government to collect union dues because why?; 9/15/12, 5:11 PM
Unknown said...: Garage, thanks for the citation to Act 61, I see you're right. WI really does have a very weird law on venue for appeals.; 9/15/12, 6:18 PM
Pettifogger said...: Lefties must surely mourn this decision, because as we all know, it is illegitimately activist for a court to overturn a statute enacted by representatives elected by the people.

Conservatives, who acknowledge the existence of judicial review, may nevertheless mourn this case as being wrongly decided.

So we should have unanimity in mourning.; 9/15/12, 6:54 PM