MILWAUKEE (CN) — Judging by some recent headlines, you’d think Wisconsin’s state supreme court controlled the entire country.
While that isn't true, the Midwest battleground’s upcoming election for a crucial seat on its highest court could have major impacts on issues like abortion access, voting maps and election laws, and the very balance of power between the state’s branches of government.
This much is certain: the ideological tilt of the court – controlled for years by conservative justices, who currently hold a narrow 4-3 majority – is on the menu for the April 4 general election, the primary for which is in two weeks. Conservative Justice Patience Roggensack is retiring, and the winner will take her place for a 10-year term.
Between Milwaukee County Circuit Court Judge Janet Protasiewicz and Dane County Circuit Court Judge Everett Mitchell – both left-leaning progressives – and Waukesha County Circuit Court Judge Jennifer Dorow and former Wisconsin Supreme Court Justice Daniel Kelly – both right-leaning conservatives – one of them will either cement or flip that sacred alignment.
Given the high stakes and politically charged tenor of the campaigning, one could confuse the ostensibly nonpartisan race for a partisan one. But party insiders, the donor class, and political wonks who discourse over traditionally down-ballot races have long been hip to the nonpartisan fantasy.
“What’s happened in the last 20 years is the nonpartisanship has become a fiction, a thin paper cover over the reality that these are de facto partisan elections,” said Mordecai Lee, an emeritus professor at the University of Wisconsin-Milwaukee and a former Democratic state legislator.
Part of the reason the court has become so political, experts say, is because it has had to solve so many controversial political problems, a role highlighted since 2018 as the administration of Democratic Governor Tony Evers – who won reelection in November – and the Republican-controlled Wisconsin Legislature have found consensus over basically nothing.
This leaves the courts to referee their fights. And as the end of the line for the state’s court system, the supreme court is sometimes tasked with mediating disputes with the most to be gained or lost politically in a sharply divided swing state.
Wisconsin’s split high court is likely to reflect its polarized populace, and eventually the court is bound to be one vote from settling an important issue, said Sara Benesh, an associate professor and chair of the political science department at the University of Wisconsin-Milwaukee.
“You better believe people are going to care who that fourth seat goes to,” Benesh added.
Lately many of these issues have fallen in conservatives’ favor. Just in the last couple of years, the court’s majority has upheld lame-duck laws limiting the governor’s executive powers; adopted voting maps drawn by Republicans many say blatantly favor their party; banned absentee ballot drop boxes; blocked Evers’ Covid-19 protocols and tossed his budget vetoes; and allowed a GOP-appointed official to remain in his seat despite his term having expired.
Abortion access is likely to be one of the next wedge issues the justices handle. Days after the U.S. Supreme Court overturned Roe v. Wade last summer, Democratic Attorney General Josh Kaul asked a circuit court to invalidate an 1849 state statute largely banning abortions when it became the law of the land post-Dobbs v. Jackson Women's Health. That lawsuit is almost definitely destined for the state supreme court.
Protasiewicz and Mitchell have said, including at a candidate forum in January, they think Dobbs was wrong, if not the worst-ever U.S. Supreme Court decision. (Responding to the same question about worst rulings, Kelly reiterated that a 2005 decision about government taking of private property was the worst; Dorow evaded answering directly but in a jurist questionnaire previously pointed to a 2003 decision invalidating anti-sodomy laws and making same-sex sexual activity legal nationwide.)