By Gabin Villiรจre, CNN Week
Updated 12:44 PM August 28, 2023
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MADISON, Wis. — Standing in the marble-lined rotunda of the state capitol earlier this month, the incoming justice of the Wisconsin Supreme Court raised her right hand, pledged to fulfill her duties "faithfully and impartially," and initiated a new era on a powerful court that has long been dominated by conservatives.
In a matter of days, the new majority stripped responsibilities from the court's conservative chief justice and dismissed its administrative director, a former judge with conservative views who once ran for the court. These sudden changes led the chief justice to accuse her liberal colleagues of carrying out a "coup." Shortly after, Republican lawmakers threatened to impeach the court's newest member.
Liberal groups, accustomed to viewing the court as an unfriendly environment, swiftly maneuvered for potential victories on several major issues. They filed lawsuits in an attempt to redraw the state's legislative districts, which heavily favor Republicans. Additionally, the Democratic attorney general sought to expedite a case challenging a 19th-century law that has prevented doctors from performing abortions in Wisconsin.
"This represents a significant shift in Wisconsin policy and politics," said C.J. Szafir, the CEO of the Wisconsin-based Institute for Reforming Government, a conservative organization. "We are about to witness a very progressive state Supreme Court, unlike anything we have seen in quite some time. And it will undoubtedly change how everything operates."
The transformation of the Wisconsin court is the outcome of an April election that became the most expensive judicial race in U.S. history, with campaigns and interest groups spending over $50 million.
At stake in that race, following the retirement of a conservative justice who held a decisive vote on a 4-3 court, was the question of who would make crucial rulings in a swing state that could determine the winner of the 2024 presidential election. Conservatives had controlled the court for 15 years, during which they upheld a voter ID law, approved limits on collective bargaining for public workers, banned absentee ballot drop boxes, and terminated a comprehensive campaign finance investigation into Republicans.
Janet Protasiewicz, a judge from Milwaukee County, won by an 11-point margin and shifted control of the court to give liberals a 4-3 majority when she was sworn in on August 1. Protasiewicz, who declined interview requests, openly expressed her support for abortion rights and opposition to what she referred to as "rigged" maps that have granted Republicans significant majorities in the state legislature. Political strategists noted that her straightforward approach aided her victory, even as court observers worried that she was making judges appear more like politicians rather than impartial referees.
The tensions surrounding the Wisconsin court reflect the state's national political significance and the increasingly partisan nature of a system in which candidates who pledge to be impartial interpreters of the law are selected by voters in contentious political campaigns. Justices are directly elected by voters in 21 states, and they must participate in retention elections after being appointed in another 17 states.
Throughout the country, gridlocked state legislatures and all-or-nothing politics have bestowed more power upon state supreme courts, often placing them in charge of determining election outcomes and abortion policies. The transition on the Wisconsin Supreme Court occurred less than a year after conservatives gained control of the top court in North Carolina and solidified their influence over the Ohio court. In North Carolina, the new majority acted swiftly, delivering victories to Republicans by overturning decisions the court had made just months earlier regarding voter ID and redistricting.
For decades, conservatives held the advantage in supreme court races in key states by fielding judges and prosecutors as candidates, emphasizing tough-on-crime messages, and securing support from well-funded groups aligned with Republicans. However, in recent years, liberals in Wisconsin have recruited candidates with similar backgrounds and capitalized on popular political themes.
The state Democratic Party, on the other hand, has invested millions of dollars in races that are supposedly nonpartisan.
The approach reached its peak with Protasiewicz’s win, which received applause from liberals nationwide. Sen. Elizabeth Warren (D-Mass.) expressed confidence that Protasiewicz would safeguard democracy as the state’s newest Supreme Court justice. Sen. Bernie Sanders (I-Vt.) celebrated her victory as a significant moment for the progressive movement. Additionally, Vice President Harris acknowledged Wisconsin voters for supporting abortion rights by electing Protasiewicz.
Conservative lawyers and organizations are developing strategies to prevent important issues from reaching the attention of the justices, while also advocating for amendments to the state constitution to solidify their previous victories. According to Szafir from the Institute for Reforming Government, conservatives need to clearly outline their reforms in the state constitution to prevent a potentially activist court from overturning them. On the other hand, liberals have taken an offensive approach, with one group filing a lawsuit on voting rules even before Protasiewicz took office. Democratic voters have also filed redistricting cases, and Wisconsin Attorney General Josh Kaul has asked for a speedy ruling on an abortion rights lawsuit. In the future, liberal attorneys may file lawsuits on voter ID, school vouchers, union rights, and a 2018 law that limited the powers of Kaul and Gov. Tony Evers.
The new liberal majority in Wisconsin consists of four women, with one justice having served for 28 years and three joining in the past five years after working as prosecutors and trial judges. Over time, the liberal justices have developed their dissent-writing skills, recognizing that they can only highlight the flaws they see in the majority's decisions. The conservative bloc includes one justice who occasionally aligns with the liberals, as seen when he joined them in rejecting Donald Trump's request to overturn his presidential loss in the state. The other conservative justices sided with Trump.
Although the new court has not yet heard a case together, tensions between the justices have already become public. In a routine scheduling order for the redistricting cases, conservative Justice Rebecca Bradley wrote a strongly worded dissent, arguing that Protasiewicz's campaign comments about "rigged" maps indicated that the liberals had already made up their minds to favor Democratic candidates.
Shortly after taking over, the liberals formed a committee of three justices to assume many of the duties previously held by Chief Justice Annette Ziegler, a conservative. Ziegler described this move as nothing short of a coup and expressed her concerns about the liberal justices wielding significant power to implement changes she disagrees with. While she did not rule out the possibility of suing her colleagues, she emphasized that legal action is not beneficial for the court and expressed sadness that it has come to this point.
In the past, the most senior member of the court served as chief justice, resulting in a liberal chief presiding over a conservative court. In response, Republican lawmakers introduced a ballot measure in 2015, which was approved by voters, allowing the justices to determine who would serve as chief justice. Conservatives on the court chose one of their own for the position shortly after the rule change. Ziegler has been serving as chief justice since 2021 and was selected for a second two-year term just before the liberals took control. While chief justices in Wisconsin do not assign decision-writing responsibilities, they oversee the state's judicial system and make certain appointments. Ziegler argues that the liberals violated the state constitution by diminishing her powers, while the liberals contend that they were within their rights as the constitution states that the chief justice must operate according to procedures adopted by the supreme court.
The justices are scheduled to deliberate the modifications collectively in the upcoming month. Justice Rebecca Dallet, a progressive, expressed that this is the most effective approach to address their disparities. "It is highly improper for the Chief Justice to persist in declining to communicate with her peers, but instead to openly contest these matters," she conveyed in a written declaration.
Ziegler also reacted strongly to the liberals' choice to dismiss Randy Koschnick, who had held the position of director of state courts since 2017. Ziegler characterized the action as an "unrefined demonstration of excessive authority."
Koschnick — a right-leaning individual who made an unsuccessful bid for state Supreme Court in 2009 — recently lodged ethics complaints against the four progressive justices. In an appearance on a conservative radio show, he referred to one justice as a "Marxist in a black robe," accused the liberals of "destroying" constitutional governance, and discussed the possibility of impeaching them.
"I believe impeachment is appropriate," he stated. "You have court officials who have taken an oath to uphold the constitution, yet they have blatantly violated it three times in three days. In my opinion, that warrants impeachment."
He later clarified to The Post that he was not advocating for impeachment. However, shortly after, state Assembly Speaker Robin Vos (R) announced on a conservative radio show that he was consulting a constitutional scholar and would consider impeaching Protasiewicz if she did not recuse herself from cases she had commented on. Republicans have argued for months that Protasiewicz should not participate in abortion and redistricting cases due to statements she made during her campaign.
"I want to assess whether she recuses herself from cases where she has already formed an opinion," Vos stated. "To me, that is a serious offense."
Soon after, Vos and other Republican lawmakers filed a motion seeking to remove Protasiewicz from the redistricting cases based on her campaign remarks and the $10 million she received from the state Democratic Party. The decision to step aside rests with Protasiewicz since in 2011, conservative justices on the court issued a 4-3 ruling stating that justices cannot compel one another to recuse themselves from cases. If Protasiewicz remains involved in the case, Republicans could potentially ask the U.S. Supreme Court to disqualify her due to a conflict of interest. Protasiewicz has not indicated what action she will take.
Protasiewicz, along with the other liberal justices, has chosen not to comment on the impeachment threats. However, their allies have come to their defense. State Sen. Kelda Roys (D) argued that impeachment proceedings would be an unprecedented attempt "to overturn the clear mandate of the voters." She suggested that conservatives are reacting out of frustration because they anticipate losing significant cases.
"They can't handle it," she remarked. "They're angry. Losing elections is tough, and I genuinely mean that. It's not a pleasant experience, and they haven't had to face it often."
In Wisconsin, justices can be impeached by a simple majority in the state Assembly and removed from office with a two-thirds majority in the state Senate if lawmakers find them guilty of crimes or corruption. Republicans hold those majorities in the legislature, but if they remove the justices, the Democratic governor could appoint replacements who share similar liberal views.
If impeached, justices must immediately cease performing their duties before the state Senate decides whether to convict them. This means that Republican lawmakers could sideline the liberals without completely removing them from office. In such a scenario, the liberals would retain their positions but would have no authority.
Former state Supreme Court Justice Jon Wilcox, a conservative, expressed concern over the behavior of the liberal justices and feared that their actions were a consequence of increasingly partisan court races.
"What worries me most is the politicization of this court," he stated. "On both sides. That deeply troubles me because when I served as a justice, I aimed to be impartial and fair-minded. I don't believe they will have that anymore."
Tensions within this court are not new. Twelve years ago, during an argument, a conservative justice placed his hands on the neck of a liberal justice in front of other court members. No criminal charges were filed, and a judicial ethics complaint fell apart when most of the justices recused themselves, citing their status as witnesses. The conservative justice retired in 2016.
Certainly! Here's the revised version of the article:
This month at Protasiewicz’s inauguration ceremony — held just hours before the justices began publicly criticizing one another — former Justice Janine Geske said disagreements and disputes should be expected on a court of seven members. Geske, who was appointed to the court by a Republican governor to fill a vacancy in 1993, compared meetings of the justices to “a Thanksgiving dinner with a group of strangers and some newly acquired in-laws and then asking everyone how they feel about the most controversial issue you could think of.”
Geske, who is a Marquette University law professor, in an interview said the shift in the court’s majority does not mean liberals can expect victories in every case. While campaigns for the court have become highly political, justices are tasked with interpreting state laws regardless of their personal opinions.
“My experience is she’s really very down-to-earth, very practical,” Geske said of Protasiewicz. “There will be surprises in some of the cases, I believe. … There will be some people who are unhappy at times. She will not always side with the liberal Democrats on every case.”
Even before Protasiewicz took office, her conservative colleagues were preparing for the change. In a 4-3 administrative ruling, the court in July declined to approve a program that would have provided continuing legal education credits to lawyers who take a class in diversity, equity, and inclusion. Bradley, the conservative justice most openly critical of the liberals, predicted the decision would not stand for long, writing, “The new majority will overturn this court’s order at its first opportunity.”
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