Voters could tip Wisconsin Supreme Court left on abortion, gerrymandering
Now a reliably conservative judiciary is retiring, and in April voters will decide whether Liberals or Conservatives hold the majority.
A decision that will have far-reaching implications, as the court is likely to rule on whether to uphold the state’s near-total abortion ban for years to come. It could also get caught up in arguments over gerrymandering and the outcome of the next presidential election.
Though the race is technically bipartisan, court candidates in recent years have worked closely with political parties, touting support from advocacy groups and telegraphing how they would rule cases. The campaign’s themes mirror those of November’s midterm elections, with Liberal candidates focusing on abortion rights and voting rules and Conservative candidates advocating legal restraint and signaling their opposition to gay rights.
Spending this year could surpass 2020’s record $10 million, with much of that money coming from dark-money groups running rampant ads attacking would-be courts.
The race consists of two Conservatives and two Liberals, and a February 21 primary will narrow the field to two for the April 4 general election. Political observers expect a Liberal and a Conservative to make it through the primary.
One of the Conservative candidates is Jennifer Dorow, a Waukesha County judge who told a Conservative radio host that she was the “most likely” candidate, due in part to the national notoriety she received for her handling of a messy trial of a man who drove a vehicle into a Christmas parade. Daniel Kelly, who served four years on the state Supreme Court and was endorsed by former President Donald Trump in 2020, described himself as the only candidate with “a proven public record of being a constitutional conservative.”
On the Liberal side, Milwaukee County Judge Janet Protasiewicz said she was running to “save democracy,” and published an ad in which she wears a judicial robe with a lace-up collar reminiscent of that of the former colonel’s justice Court of Justice of the United States, Ruth Bader, reminds Ginsburg. Dane County Judge Everett Mitchell, who would be the first black judge elected up Court, said he runs partly to show young people that “justice is the color of my skin”.
Three of the four candidates said in interviews they feared party affiliations would tarnish the court’s image, but said there was no way to win without the help of the parties. The fourth, Dorow, turned down interview requests but has touted her Republican connections over the years.
Despite all the anticipation, the race was largely over so far a staid thing. Sitting at a long table at a recent candidate forum, Kelly and the Liberal candidates explained their views on key decisions while Dorow read notes and avoided hinting at her views. The liveliest moment came when the contestants were asked about their favorite founding fathers. Kelly dubbed Alexander Hamilton, and Mitchell jokingly raised his hands and said, “Come on man, everybody knows Alexander Hamilton. You saw the musical.”
Often only 20 percent of those eligible to vote show up for court elections, a small fraction of the number who run in races for governor and president. Republican lawmakers are attempting to ask questions about bail and welfare programs in April’s vote, which they hope will boost Conservative turnout. Liberal groups complain that they are being barred from voting, arguing lawmakers failed to follow state laws in implementing the measures.
With a Democratic governor and a Republican legislature, Wisconsin’s toughest issues are often decided by the Supreme Court. In recent years, Conservatives have often stuck together in 4-3 rulings, but sometimes one of their members, Brian Hagedorn, has joined forces with the court’s Liberals to form a majority. That came after the 2020 presidential election, when the court issued a series of rulings that narrowly confirmed Joe Biden’s victory.
During the election campaign, the Liberal candidates have angered the court for its decisions on constituencies and voting rights. They have praised the sentencing of Trump and his allies and reminded voters that the court could once again play a role in upholding the will of the electorate.
Kelly, the Conservative who lost his seat on the court in the April 2020 election, suggested he also supports the rulings from the last presidential election, saying he doesn’t see “any argument that would be able to convince all the people.” disenfranchise those who elected votes in this election.” (Dorow, the other Conservative candidate, has not publicly expressed her views on the cases.)
Much of this winter’s campaign has focused on abortion. For years to come, the court will almost certainly rule the fate of Wisconsin’s 1849 abortion ban in all cases except when a mother’s life is in danger. The ban, which has been dormant for 49 years, came into effect last summer when the US Supreme Court issued it Dobbs v. Jackson Women’s Health Organization decision to cancel the Roe v. calf case that had established a nationwide right to abortion. A court case over the Wisconsin ban is now being heard before a trial judge in Madison.
Panned the Liberal candidates dobbs, Protasiewcz called the decision “judicial activism at its worst” and Mitchell said it was “one of the first times I’ve seen a cemented right taken away.”
Kelly, who once wrote that Democrats supported abortion “to preserve sexual libertinity,” said his political views were irrelevant to the court’s work. Dorow told a conservative radio host that the Dobbs Decision “honours the constitutional framework that we have in this country” by leaving states free to decide whether to allow abortion. Kelly and Dorow have both received support from anti-abortion advocates.
Dorow gave an indication of her views in her 2011 bid for a seat at the bank. In the application she was asked to name one of the worst opinions of the past few decades, she quoted Lawrence vs. Texas, the 2003 case that established the right to same-sex intimacy and helped pave the way for the court’s ruling 12 years later guaranteeing the right to same-sex marriage. Dorow called Laurentius “a prime example of legal activism at its worst.” She declined to say during the candidates’ forum whether she supported the position.
Kelly expressed similar views when he petitioned the then-governor for nomination to the state Supreme Court in 2016. Scott Walker (R), who calls US Supreme Court Justice Antonin Scalia’s challenge in the same-sex marriage case one of the best opinions in decades. The Liberal candidates said in interviews that they supported the decisions on same-sex intimacy and same-sex marriage.
For the past decade and a half, Wisconsin court processes have become increasingly politicized, leading candidates to question whether judges and prospective judges can handle cases impartially. In this campaign, candidates have contested last year’s 4-3 decision that establishes state legislative districts that Republicans strongly favor.
“My values are that I protect democracy, that I believe everyone’s voice should count, that I currently don’t think the maps are fair – I even think they’re outrageously unfair,” Protasiewicz said in an interview .
In the interview and at the candidates’ forum, Protasiewicz called the cards “manipulated”. Democrats are poised to file a tampering lawsuit if Liberals take control of the court, and Kelly questioned whether she would act fairly.
“I think when someone tells you what their values are in response to a legal question, they’re telling you how they’re going to rule a case,” Kelly said.
As an attorney, Kelly defended a series of maps drawn in 2011 that also favored Republicans. He said as a judge he would not consider politics if he had to consider a redistribution case.
This week, the state Republican Party filed an ethics complaint against Protasiewicz over her comments on cases. Her allies dismissed it as a political stunt.
Protasiewicz, who has clearly outbid her opponents, is so far the only candidate with a television spot. A spending spree could be coming soon. A group linked to Republican mega-donor Richard Uihlein has begun doing radio ads for Kelly and has vowed to eventually spend millions of dollars on him.
