Wisconsin Supreme Court: A Legacy of Bad Decisions

Three cases where the Wisconsin Supreme Court thwarted democracy

Richard Hudson March 30, 2023

The Wisconsin Supreme Court Chamber has been home to the most destructive force in Wisconsin politics—its right-wing justices. On April 4, voters will have a chance to change this.

The Wisconsin Supreme Court election has come down to two candidates, conservative Dan Kelly and progressive Janet Protasiewicz. Conservatives currently have a 4-3 majority on the court, but conservative Justice Patience Roggensack is retiring, giving liberals a chance to flip the court.

Protasiewicz’s campaign and supporters have run ads highlighting Kelly’s strongly biased positions on issues that may come before the court, from gerrymandering to voting rights to abortion.

If you live in Wisconsin, no doubt you have seen attack ads against both candidates. Kelly’s ads wrongly attack Protasiewicz for being soft on crime, cherry-picking three out of over 3,000 cases she has decided in a decade as a District Court judge in Wisconsin.

Fear of crime is a consistent drum beat in these attack ads, yet the truth is that traditional criminals rarely come before the Supreme Court. The Court interprets existing laws, when they review cases brought from lower courts on appeal.

Supreme Court candidate Daniel Kelly.
Supreme Court candidate Daniel Kelly

Over the past decade, Wisconsin’s justices have repeatedly demonstrated they are not merely conservative, but deeply right-wing. (From 2016 to 2020, Daniel Kelly was one of these, appointed by Scott Walker. He lost his 2020 election campaign by a 10-point margin.) They were elected thanks to tens of millions of dollars in campaign contributions from right-wing billionaires across the country. 

In their decisions, buried in a thicket of legalese that is impenetrable to most citizens, these justices have repeatedly twisted the law to favor Republicans.

A legacy of bad decisions

Why do we no longer have the ballot drop boxes that were used safely and securely statewide during the Covid-19 pandemic? The story is a perfect example of right-wing justices “legislating from the bench.”

State law does not mention drop boxes. Nonetheless the right-wing justices outlawed them by twisting the language of the election law, which holds that ballots must be “mailed by the elector, or delivered in person, to the municipal clerk.” Defying precedent and common sense, the right-wing justices decided that references to “clerk” meant the physical office, making drop boxes suddenly illegal. 

In her dissent, liberal Justice Ann Walsh Bradley argues that this interpretation is nonsensical. If the lawmakers had meant the physical office, they would have said so—in fact, other sections of the law specifically refer to the “clerk’s office” or the “office of the municipal clerk.” Instead, Bradley writes, “the municipal clerk” refers to the person. Given that the clerk maintains and empties the drop boxes, using a drop box is a perfectly valid way to deliver a ballot to them.

The right-wingers’ decision also made it a crime for a person to return another person’s already stamped and sealed absentee ballot. Only a last-minute appeal made an exception that allows another person to deliver a ballot for a disabled voter.

Why is the state so gerrymandered? Because the right-wing justices again twisted the law. In 2021, in the flurry of cases arguing for new, fairer maps, the right-wing Supreme Court decided to adopt a “least-change” approach certifying a new voting map that would be as close to a previous map as possible. No court in Wisconsin, state or federal, had ever adopted this concept to such a significant matter.

Then, the right-wing Court further argued that they could avoid a “political” stance on gerrymandering by requiring this least-change idea. They forced Gov. Tony Evers and the Democrats to put forth new maps that remained largely faithful to the highly gerrymandered maps drawn by Scott Walker and the Republicans in secret in 2011.

This decision was baldly political. Ratifying outdated, partisan political maps inserted the court squarely into politics, leaving voters with the same fractured districts that will guarantee a Republican majority in the legislature for another decade.

More politics from the bench

In 2020, in the final lame-duck months of Kelly’s term after he had already lost his seat, he cast the deciding vote in another twisted decision that struck down the Covid stay-at-home order. The legal challenge was brought by Republican state lawmakers and decided 5-4 by the right-wing justices. Republican Justice Brian Hagedorn, who sided with the minority, wrote that the government official who had made the policy had legally exercised powers granted in the law. “We are a court of law.” Hagedorn wrote. “This court has strayed from its charge and turned this case into something quite different than the case brought to us.”

Later that year, in a dramatic 11th-hour decision, the Court nearly tossed out the 2020 presidential election results. Just before the Electoral College was to meet in December, Hagedorn and the liberals ruled 4-3 to reject a Trump lawsuit and uphold Biden’s win in the state. Had Kelly still been on that court, we would have had a full-blown constitutional crisis. 

The language of all of these decisions is complex but every word and footnote are available online, at https://www.wicourts.gov/opinions.

Supreme Court candidate Janet Protasiewicz (Wikimedia Commons)
Supreme Court candidate Janet Protasiewicz (Wikimedia Commons)

On April 4, Wisconsin voters have an opportunity to restrain the right-wing justices by electing Judge Janet Protasiewicz. Unlike her opponent, she will not “legislate from the bench.”  Instead, she is committed to fair decision-making and the rule of law. She will abide by the statutes as they are written. 

Ignore Kelly’s dishonest and desperate attack ads. Vote Judge Janet on April 4.

As a 501©3 nonprofit, Barn Raiser does not support or oppose any candidate for public office.

Richard Hudson

Richard Hudson is a retired PBS producer who enjoys photography, astronomy, music, and the beautiful woods and lakes of rural Wisconsin. He supports progressive causes, facts over lies, and Democracy.

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