For more than a decade now, the Wisconsin Supreme Court has acted as a “third branch” of its Republican-dominated legislature, according to Ben Wikler, chair of the state Democratic Party. But that could change this spring in an election that has enormous implications not only for the Dairy State, but for the country as a whole. “The Wisconsin Supreme Court race is the most critical election of 2023,” Wikler tells me, “both for Wisconsin and for American democracy.”
Four candidates—two conservatives, two liberals—are running to replace conservative justice Patience Roggensack, who is not seeking reelection when her term ends this summer. The outcome of the April election will determine control of the seven-member court, and a host of issues along with it. Among them: abortion rights, the Republican gerrymander of state election maps, and potentially the certification of future presidential elections in 2024 and beyond. “The stakes couldn’t be higher,” says Milwaukee County Circuit Court judge Janet Protasiewicz, one of the two liberals seeking the open seat. “What you really have on the ballot here in the state of Wisconsin is whether common sense, whether impartiality, whether independence is going to win in the end, or whether an activist, extreme partisan court is going to win.”
“I think everybody has got to care about that,” she adds.
The race has already captured national attention, and not to mention a flood of money—enough, Wikler tells me, to put it on track to be the “most expensive judicial race in American history.” And after the February 21 primary, the jockeying is likely to get even fiercer: Liberals in Wisconsin are seeking to make the race a rallying point for national Democrats, as Georgia was in the 2020 and 2022 runoffs that helped the party win the United States Senate. Conservatives, meanwhile, are looking to maintain the 4-3 Supreme Court majority that sanctioned some of the most partisan maps in the country, limited the powers of Democratic governor Tony Evers, and might continue to restrict abortion rights under an 1849 law that took effect again after the overturn of Roe v. Wade last year.
Technically, it’s a nonpartisan race. But judicial elections have had a distinctly partisan bent to them for more than a decade now, driven by conservative campaigns beginning in 2008 that were explicitly political in nature and that “fundamentally changed the nature” of such races, according to Howard Schweber, a professor of political science at University of Wisconsin-Madison. And with everything from abortion rights in Wisconsin to the integrity of next year’s presidential election at stake, this off-year election has become even more factional. “The gloves are completely off,” Schweber tells me. “This is a purely partisan election.”
Two liberals are in the running: Protasiewicz, who has dramatically outpaced her rivals in fundraising and put abortion access at the forefront of her campaign; and Dane County Circuit Court judge Everett Mitchell, who has expressed concern that the partisan nature of the race could further “weaken the integrity of our justice system” in the public perception. “If everybody believed that every decision we render is based on politics, then we would have no legitimacy to our trial courts,” Mitchell tells me.
The conservatives are Jennifer Dorow, who was appointed to the circuit court of Waukesha County by former Republican governor Scott Walker and who received national attention when she presided over the trial of Waukesha Christmas parade attacker Darrell Brooks last year; and Daniel Kelly, who was appointed by Walker to serve on the state Supreme Court in 2016 after the retirement of David Prosser. (Roggensack, for her part, has endorsed Dorow.)
While both conservatives have attacked Protasiewicz for weighing in on cases that could soon come before the court, including her claim that Wisconsin’s redistricting maps are “rigged,” neither has been coy about their judicial philosophies. Both have touted endorsements from antiabortion groups, with Dorow outright praising the high court’s Dobbs decision in an interview last month. “I think it’s really important for justices to have courage and to be able to look back at prior decisions…and say our prior decisions got it wrong,” Dorow said on the Regular Joe Show in January. “And they got [Roe] wrong…And so I do agree with the decision of the US Supreme Court.” Each has also taken antigay positions: Dorow has been critical of the landmark Lawrence v. Texas ruling, referring to the 2003 decision declaring sodomy laws unconstitutional as “judicial activism at its worst.” Meanwhile, Kelly has suggested same-sex marriage could “rob the institution of marriage of any discernible meaning.”
Eric Lutz
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