It Is “Our” Court Now
April’s Wisconsin Supreme Court election was a pitched partisan battle between Democrats and Republicans with policy decisions on the line. Absent was any pretext of being “judicial” or non-partisan.
Some $47 million dollars was spent on the race, eclipsing the previous high of $15 million spent on any supreme court race in any state in any year. The parties, their funders and ideological allies went all in. Activists and voters alike were motivated by fears and/or expectations of future judicial rulings depending on which candidate won.
The message from the chair of the state Democratic Party was clear. “The fundamental issues of this election are reproductive freedom, fair maps, voting rights, and the security of the 2024 presidential election. And, everything else we care about.”
The executive director of the Republican Party, warned, “If the liberals pick up another seat, they will have a rock-solid majority that never deviates from liberal activism” citing in particular the threat to school choice, voter id, and gun ownership.
The rhetoric was more political than judicial. Before the election, Judge Janet Protasiewicz said, “I decided to run for this seat for really one simple reason, and that is to ensure that far right-wing extremists do not hijack our Supreme Court.”
Rebecca Bradley, one of the sitting conservative justices, warned, “I don’t think people have any idea of what’s coming … we will have four people in Wisconsin robbing the people of the right to govern themselves.”
For Democratic voters, the primary motivating issues were abortion and gerrymandered legislative districts. Protasiewicz (in the words of the New York Times) “all but promised voters” that if they elected her, the court’s new 4-to-3 liberal majority would reverse Wisconsin’s 1849 abortion ban and overturn the state’s Republican-friendly election maps.
That precedent has already been set in North Carolina where a newly elected (in November) Republican majority on the state Supreme Court reinstated Republican drafted legislative maps, reversing a decision from last year when the Court, then with a Democratic majority, threw the maps out as violating the state’s constitution.
The partisan campaigns and the rhetoric did get the attention of voters. Turnout was 1.8 million, some 630,000 more than in 2019, the last comparable Court election. Turnout across the state reached 70 percent of last year’s governor’s race; a few percentage points higher in counties near Madison and Milwaukee, a few percentage points lower the further away from Madison and Milwaukee.
Republicans were clearly less motivated to vote than Democrats, reflecting the human tendency of voters, who already have what they want, to be less motivated to go to the polls than voters who want what they don’t have.
The statewide vote for Kelly was 64 percent of the Republican vote in the Governor’s race, while Protasiewicz’s vote was 75 percent of the Democratic vote for Governor. That relationship held in every region of the state, with only a drop off of a few percentage points for both parties the further the distance from Madison and Milwaukee.
The numbers indicate that almost uniformly, Republicans voted for Kelly and Democrats voted for Protasiewicz. Protasiewicz won simply because more Democrats showed up.
The press and pundits saw the results as having more significance, representing perhaps a shift among voters. “Wisconsin showed the breadth of Democratic strength.” “She … overperformed in a lot of the more conservative areas,” “She did surprisingly well in rural and working-class areas.” “In the suburban and traditionally red swath outside Milwaukee — Judge Protasiewicz outperformed historical trends.”
All of those conclusions are readily explained by the statewide and uniform difference in turnout between usual Democratic and Republican voters. The underlying political reality in Wisconsin did not change.
The Court is now ours. What next? We expect the Court to deliver for us. In the words of the Assembly Democratic leader, It will give us “an opportunity to go on offense.” The media expects the same. The victory will “allow Wisconsin Democrats to pursue their own agenda through the courts after spending a dozen years ducking and running at most levels of state politics.”
There is a cost, however. The public perception that judicial decisions are driven by partisan considerations is reinforced. Just the roles will be reversed. Democrats who believe the existing Republican majority has been excessively partisan, see the new majority as restoring balance. Republicans who applauded the old Court fear what the new Court will do.
Incumbent Justice Jill Karofsky had it wrong when she said, “I’m not concerned about the legitimacy of the Court, because so many people voted for this Court. So many people wanted this majority.” The Court’s legitimacy, however, depends not on the number of votes received, but on public confidence in its decisions.
Integrity is lost when judges hand down decisions that are in fact political. It is undermined by those who charge politics whenever a decision is not to their liking. Who attack the judge rather than address the issue. Two recent examples are the responses to decisions written by Justice Brian Hagedorn, who at one point in his career was chief legal counsel to Governor Scott Walker.
The first was Hagedorn’s decision, joined in by the three Democratic justices, to reject Trump’s suit to overthrow the 2020 presidential election.
On the conservative MacIver Institute’s website he was called, “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.”
The second was the decision written by Hagedorn and joined in by his fellow conservative justices. It threw out Governor Tony Evers’ consecutive covid emergency declarations on the grounds that state law limits emergency declarations to 60 days unless extended by the legislature.
The response from the Democratic Party chair: “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.”
As partisans pursue political goals through the courts, public trust in the integrity of the judiciary declines and the constitutional processes that have served us well for more than 200 years begin to fail.
We may not like where we are headed and agree it is not good for democracy and political stability, but when issues are vital and the contest is perceived as “war”, self-restraint feels like surrendering.
This is a human predicament that shows up in other places, not just politics. Competition among colleges to attract elite high school athletes has the same characteristics. To keep ahead of others, sports programs (most commonly women’s soccer and lacrosse) are recruiting younger and younger players, with college scholarship commitments now being made to eighth graders.
Coaches are quoted in a New York Times story about the damage done: “It is detrimental to the whole development of the sport, and to the girls. . . . It’s the single biggest problem in college athletics. . . . It’s actually rather destructive. . . . It’s caused this downward spiral for everybody.”
Yet these same coaches fear that “if they don’t do it, other coaches will. … Is it a little bit sick? Yeah.”
The words of Aristotle come to mind. For him restraint was a necessary condition of political stability. “(States) have been destroyed by means … carried to excess.”