On Monday the Wisconsin Supreme Court heard the oral arguments on Act 10 -- the law that ended most collective bargaining rights for most public-employee unions in Wisconsin.
Justice Ann Walsh Bradley observed that the two sides in the case were like "two ships passing each other."
Attorney General J.B. Van Hollen, who argued the state's case, disagreed. "Two ships don't pass in the night," he said. "They are on a collision course." And, he added, "The state has a bigger ship, and we shall win."
That pretty much sums up the Walker Administration's attitude toward the teachers, janitors, clerks, and municipal employees it seeks to disempower through Act 10.
The state is bigger and stronger, Walker, Van Hollen, and their allies argue, and will not be deterred by public outcry, mass protests, or even the courts.
In October, a lower court found the state in contempt, after it ignored the judge's ruling that parts of Act 10 were unconstitutional. In particular, the state ignored the finding that it was unconstitutional to require unions to hold annual recertification elections. The Walker Administration went ahead and prepared for those elections anyway, promulgating rules and spending money and manpower to get ready for them. After the contempt citation, it put the preparations on hold.
To keep the ship moving, Van Hollen asked the Supreme Court to back up and put a stay on the 8-month-old decision the state was held in contempt for disregarding, so it could get back to preparing for the very same elections the lower court deemed unconstitutional.
"Governor Walker and the state have been acting in violation of the circuit court judgment since last spring," said Tamara Packard, an attorney for Madison Teachers, Inc. "It is far too late for them to now seek a stay of that initial judgment."
The fundamental argument came down to constitutional rights.
"There is no constitutional right to collective bargaining," Van Hollen declared to the court.
"Our position is not that there is a constitutional right to collectively bargain," Lester Pines, an attorney for Madison Teachers, Inc., rejoined. "Our position is that there is an associational right of employees coming together for the purpose" of petitioning their government and employer on matters related to wages and working conditions.
Van Hollen conceded that individuals have a right to associate and to petition for wages, benefits, and terms of employment.
Don't those same individuals "have a constitutional right to associate for the purpose of negotiating wages and working conditions?" Justice Bradley asked.
"As individuals, absolutely," Van Hollen replied. "But there is no statutory right to collectively bargain."
Good luck to all those individuals who seek to bargain individually, but not as part of a union. Destroying their collective power is, of course, the whole point of Act 10.
Pines picked up on Van Hollen's ship analogy when he stood to make his argument for the unions' side.
"The Titanic was a big ship," he observed. Pines compared the comparatively small iceberg that sank the Titanic to the legal troubles the Walker Administration has encountered. "What Act 10 has run into is the Wisconsin constitution," he said.
Act 10 illegally penalizes people who exercise their associational right to join unions by telling them they may not discuss wage increases above cost-of-living or other working conditions, Pines argued.
In other words, Pines pointed out, "you will never get another wage increase for the rest of your career," if you belong to a public employees' union under Act 10.
The other burdens imposed by Act 10, including doing away with automatic dues payments, are designed to do away with unions once and for all, he said.
Pines got a rise out of the justices when he told them that not a single one of them would be sitting on the bench if they had to meet the election standard in Act 10.
That standard requires unions to win more than half of the votes of their entire memberships -- counting those who don't cast ballots -- in order to be certified and continue to exist.
Pines asked the justices to consider how they would fare in a low-turnout spring election, if they had to win 51 percent of the vote for all eligible voters in the state to remain on the bench.
"You have tens of thousands of union members who have made this associational choice," to join unions, Pines added. "The purpose of Act 10 is to so burden this associational choice.... The legislature has set it up so that since there is no economic motivation to continue, the employees themselves will have to abandon that associational choice."
The justices spent a lot of time trying to nail down how much time the state would need to go ahead and hold recertification elections.
"To be clear, the state is not conceding that December elections cannot take place," said Justice Michael Gableman.
Assistant Attorney General Kevin St. John agreed, "It has not."
That's bad news for the unions, who got a temporary reprieve from November recertification elections after the contempt order.
There was some serpentine argument about whether Dane County Circuit Court Judge Juan Colas had the authority to issue the contempt citation because, Justice Annette Ziegler said, it was "effectively an injunction" and could be seen as revising his earlier ruling, which didn't include an injunction.
Chief Justice Shirley Abrahamson read a statute from the bench showing that the judge did, indeed, have that authority.
And there was disagreement about whether the court had the right to change the election deadlines in the original statute so the state could more easily meet them.
Both sides made statements claiming they were happy with the Court's questions, which showed they took the issue seriously, and both expressed confidence that they could win.
But the 4-3 divide on the court was evident throughout the arguments.
In particular, Justice Gableman took pains to express his contempt for the unions' side.
Gableman, who won a race so expensive and so dirty it made national news, with an influx of out-of-state money and a barrage of dishonest, Willie Horton style ads tarring the state's first African American supreme court justice, took pains to express his contempt for the union side.
It was an issue of "fairness" that the court be able to rewrite the statute so that the recertification elections could proceed on a new set of deadlines, he said.
If the circuit court could force the state to miss deadlines by declaring the statute unconstitutional, why couldn't the Supreme Court change the deadlines in the law, he asked.
He took a very sarcastic tone when Packard started explaining the authority of the circuit courts.
"I was a circuit court judge for six years," he said. (During that time he racked up a record as the most overturned circuit court judge in the state.)
And he cut Packard off: "Thank you for the review of history, but if that's the best you can do to answer my question, fine."
Packard concluded by asking the court to tell the state, and its future leaders "they must respect the authority of the judicial branch."
We'll see what this court has to say about that.