Is a Justice Just a Vote?
In our politics today we look at a justice and we see a vote. There are “our” justices, and “their” justices. We have a sense of ownership. We expect our justices to decide cases for us. Their justices to decide cases for them.
When that doesn’t happen, we are surprised or feel betrayed, depending on who jumped ship, in what direction.
In Wisconsin the partisan frame starts during the election campaign. Although justices run as individuals without party identification in the non-partisan Spring election, everyone paying attention knows which side each candidate represents. The media coverage, the organizational support, the code words, all trumpet, despite claims of allegiance only to the law, X is conservative, Y is liberal.
Analysis centers on what will happen to the ideological balance on the Court. Messages from interest groups warn of the dire dangers to cherished goals if the opponent should win.
Code words from the candidates are clear.
Justice Brian Hagedorn, in his race, talked about the dangers of judicial activism. “I believe that my job as a judge is to say what the law is, not what the law should be; to uphold and enforce the Constitution as written. We need to reject the politicizing of the Court and judges who have political outcomes in mind.”
Justice Jill Karofsky wrote on her campaign website, “I will follow the law, and I will protect our values…More than anything, our courts are about constitutional rights…. We will serve the needs of crime victims, we will stand up for racial justice and civil rights, we will protect the right to marriage equality, and we will never allow for the rights of women to be rolled back.”
The Court races in the State started becoming much more partisan in 2011, the year newly elected Governor Scott Walker and Republican legislative majorities passed Act 10 eliminating many public union bargaining rights and touching off massive demonstrations in Madison. That election was seen as a referendum on Walker and his policies. More than $4.5 million was spent by outside groups, much of it originating from unions or the Koch brothers’ organizations.
The campaign director for David Prosser Jr., one of the candidates running that year, was quoted by the Milwaukee Journal Sentinel saying, Prosser's "personal ideology more closely mirrors" Walker's, and that a win by Prosser would result in, "protecting the conservative judicial majority and acting as a common-sense compliment to both the new administration and Legislature.”
The increasingly intense pressures on the justices to deliver for their supporters have been particularly visible the last six months. The focus has been on Hagedorn and two particularly partisan issues.
His ordeal began with the challenges to Biden’s win in Wisconsin by the Republican Party and Trump’s campaign. In a series of decisions written by Hagedorn and joined by the three liberal justices, all the challenges were dismissed.
Hagedorn, elected as a conservative and supported by conservatives, wrote some strong language. "We are invited to invalidate the entire presidential election in Wisconsin by declaring it ‘null’ — yes, the whole thing … This is a dangerous path we are being asked to tread. The loss of public trust in our constitutional order resulting from the exercise of this kind of judicial power would be incalculable."
The backlash was hard and swift. In an interview with the New York Times Hagedorn said, “I’ve been called a traitor. I’ve been called a liar. I’ve been called a fraud. I’ve been asked if I’m being paid off by the Chinese Communist Party. I’ve been told I might be tried for treason … there’s certain uncomfortableness when your child asks you whether it’s OK to play in the front yard or whether they should just stay in the backyard.”
A guest writer on the conservative MacIver Institute’s website was caustic, demeaning and personally insulting. “Hagedorn has become the sort of justice he promised that he would never be—a constitutional illiterate who twists himself into laughably unsupported knots in order to arrive at the predetermined policy outcome he personally prefers. … He is, and has likely always been, nothing more than a politician willing to say anything on Election Day but spend every day after doing whatever he pleases.”
Then came the recent Court decision written by Hagedorn and joined by the three conservative justices throwing out Governor Tony Evers’ three consecutive emergency declarations mandating face coverings in public places.
State law is pretty clear. “A state of emergency shall not exceed 60 days, unless the state of emergency is extended by joint resolution of the legislature.”
"The question in this case is not whether the Governor acted wisely; it is whether he acted lawfully. We conclude he did not," Hagedorn wrote. “(The law) must be read to forbid the governor from proclaiming repeated states of emergency for the same enabling condition absent legislative approval."
The backlash was hard and swift. “This dangerous ruling from the radical conservative majority on our Supreme Court, rewriting Wisconsin law in order to advance a partisan GOP agenda, is a reminder of all that we must fight for in every election,” Ben Wikler, chair of the Democratic Party of Wisconsin, wrote in his weekly newsletter.
“We need state Supreme Court justices focused on justice and the rule of law, not advancing the electoral goals of the Republican Party. For our Supreme Court, that fight will be in 2023, when Chief Justice Roggensack’s term ends and we have the opportunity to elect a new justice who will truly respect our laws, our Constitution, and the health and safety of our people.”
That sentiment is the same sentiment expressed by Trump in his rush to appoint a U.S. Supreme Court Justice before the election. He wanted another vote when election challenges reached the Court.
Our founders were not naive about human nature. They recognized the temptation to exert power and exceed boundaries. To preserve the democracy they created, they divided power and put in checks and balances. Courts are assigned the role of impartial arbiter of the legal and constitutional limits of executive power and legislative authority.
On the path to authoritarian government. the courts are not abolished, they become rubber stamps for those who hold political power. The change comes over time, not overnight.
In our partisan fights to achieve policy goals it is easy to overlook collateral damage done to democratic institutions. Short term goals might be gained, but the longer-term losses are more significant.
When a justice is just a vote, or perceived to be just a vote, public confidence in the credibility and integrity of the Court disappears. We are already far down that road. Backing up will require intentional and concerted effort by all the political players. A change in attitude and rhetoric would be a start. When planning policy and strategy, the effect on the long-term health of democratic institutions must be included. It will be a gift to our children that keeps on giving.
Douglas Kane is the author of "Our Politics: Reflections on Political Life" published in 2019 by Southern Illinois University Press
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