Another pivotal Wisconsin Supreme Court election offers two familiar outcomes

Wisconsin is hurtling toward another nationally watched, pivotal state Supreme Court election.

The April 1 race has two possible outcomes: a guaranteed liberal majority until 2028 or a 3-3 split with Justice Brian Hagedorn, a conservative-leaning swing vote, again wielding outsized influence.

Longtime Justice Ann Walsh Bradley is retiring after 30 years on the high court. She has anchored the court’s liberal majority for the past two years after serving for decades without being in a clear-cut majority.

The contest seems poised to pit Susan Crawford, a Dane County judge endorsed by the court’s four current liberal members, against former Attorney General Brad Schimel, a Republican who now serves as a Waukesha County judge. If Crawford wins, liberals will lock in their majority for at least three more years, with chances to expand it in 2026 and 2027, when Justice Rebecca Bradley and Chief Justice Annette Ziegler, both conservatives, will be up for reelection. 

Outside groups are already mobilizing to boost their candidates in the ostensibly nonpartisan race. In November, the Democratic Party of Wisconsin endorsed Crawford, boasting that the Madison judge “will always protect Wisconsinites’ core freedoms.” Meanwhile, conservative groups, like Americans for Prosperity Wisconsin, have come out for Schimel, saying he’s the candidate “who will restore balance and reestablish trust in our state’s highest court.” 

So what will voters get from either outcome? The court’s recent terms provide clues.

Liberal majority moving slowly

The Wisconsin Supreme Court is at the center of state politics. For the past two years, Justices Rebecca Dallet, Jill Karofsky, Janet Protasiewicz and Walsh Bradley — who collectively make up the court’s liberal majority — have flexed their influence and remade Wisconsin’s political landscape.

Two cases in particular stand out. In the first, the liberal majority threw out the state’s Republican-gerrymandered voting maps, breaking a GOP vice grip on the Legislature. As a result Democrats picked up 14 seats in the Assembly and state Senate in a good Republican year nationwide. In the other, the liberal bloc expanded voting access, reversing a conservative-authored decision from just two years earlier that banned the use of unstaffed absentee ballot drop boxes.

But in other cases, the liberal justices have proceeded more cautiously than their allies would have hoped. They didn’t rule that partisan gerrymandering violated the state constitution, instead tossing the skewed maps on a technicality. The majority also declined to redraw Wisconsin’s congressional districts, despite being prompted by a Democratic-aligned law firm. They rejected another case asking them to boot Green Party presidential candidate Jill Stein from November’s ballot, and in a fourth case, they allowed a long-shot challenger to Joe Biden on the primary ballot despite objections from other Democrats.

In fact, of the court’s paltry 14 decisions last term, only four cases were settled 4-3 along ideological lines, and that includes the legislative maps and ballot drop box cases. In the third, the court’s liberal majority ruled that the Catholic Charities Bureau did not qualify for a religious exemption from contributing to Wisconsin’s unemployment insurance system. In the fourth, they ruled a Door County village could use eminent domain to seize a sliver of land from a business owner to build a sidewalk.

In other cases, they built consensus with their conservative colleagues.

In one political case, Gov. Tony Evers challenged a law giving the Legislature’s Joint Finance Committee the ability to veto certain conservation projects, arguing it was a separation of powers violation. The four liberal justices, Hagedorn and Bradley agreed. 

“Maintaining the separation of powers between the branches is essential for the preservation of liberty and a government accountable to the people,” the justices declared in a Rebecca Bradley-authored opinion.

In another case, the Wisconsin Supreme Court unanimously upheld a lower court ruling rejecting an effort from an Ashland County mother to have her partner, whom she is not married to, adopt her child. In another Rebecca Bradley-authored opinion, the justices relied on a literal reading of a state statute requiring a stepparent to be married to a child’s parent in order to be eligible to adopt the child.

While constitutional claims weren’t considered, a concurring opinion from Dallet suggests the liberals could be open to broad interpretations of the Wisconsin Constitution.

The Wisconsin “constitution was written independently of the United States Constitution and we must interpret it as such, based on its own language and our state’s unique identity,” Dallet wrote. 

The state constitution states: “All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness.”

That clause is at the crux of a lawsuit filed by Planned Parenthood of Wisconsin seeking affirmation the Wisconsin Constitution protects abortion access. The high court has not yet scheduled that case for oral arguments.

Hagedorn wields powerful swing vote

If Schimel triumphs on April 1, the court will revert to being conservative-leaning, with Hagedorn, who is the swingiest member of the court, wielding immense influence.

Consider the three court terms prior to the liberals taking the majority from 2020 to 2023. During those three terms, the court settled 61 cases 4-3. Hagedorn was among the four-justice majority in 50 of them, or 82% of all 4-3 cases. The next closest justice was Karofsky, who appeared in the 4-3 majority 36 times.

During that same period, Hagedorn sided with his conservative or liberal colleagues in an equal number of 4-3 cases, voting with each bloc 24 times.

His impact was even more profound in political cases: Among the 16 political cases settled 4-3 during those terms, he was in the majority in all but one case.

Where Hagedorn lands in certain cases isn’t always predictable. In a lawsuit Donald Trump filed  to tip the 2020 election results in his favor, Hagedorn joined his three liberal colleagues, holding that Trump took too long to file his claims.

On legislative redistricting Hagedorn initially joined his conservative colleagues in endorsing a “least-change” approach to drawing new maps after the 2020 Census, ensuring previously Republican gerrymandered maps would continue. But then he sided with his liberal colleagues in selecting maps drawn by Evers. When the U.S. Supreme Court rejected those maps because of potential Voting Rights Act violations, he returned to the conservative bloc and implemented maps drawn by the Republican-controlled Legislature.

Hagedorn’s swings also happen in non-political cases. In a criminal case from June 2023, Hagedorn, writing for his conservative colleagues, held that a Marshfield man’s Fourth Amendment rights weren’t violated during a traffic stop. In that case a police officer pulled over Quaheem Moore for speeding. After smelling “raw marijuana,” she and another officer removed him from his car and conducted a search, finding other drugs and ultimately arresting Moore. The court held the officers had probable cause to believe Moore had committed a crime, over the objections of their liberal colleagues.

A few years later, in the case of a drunk driver who wasn’t demonstrating any signs of impairment, Hagedorn joined the four liberal justices and Bradley in a 6-1 decision holding the driver’s Fourth Amendment rights were violated. The court determined the Plymouth police officer who arrested Michael Wiskowski after he fell asleep in a McDonald’s drive-thru committed an unconstitutional search when he tested his sobriety and ultimately arrested him. The court determined the officer didn’t have probable cause Wiskowski had committed a crime.

Hagedorn’s willingness to work with both ideological blocs has drawn criticism from other conservatives. After Hagedorn sided with the liberal justices in one 2020 case, Republican former state Rep. Adam Jarchow tweeted that “conservatives have been snookered” by the justice. The justice rebutted that, saying in 2020 he “will apply the law as written, without fear or favor, in every case before me.”

In April 2022, former Justice Daniel Kelly — who has twice failed to win a 10-year term after being appointed to the bench — declared Hagedorn to be “supremely unreliable in his commitment to following what the law says.”

Hagedorn is up for re-election in 2029.

Political discord empowers court

The April 1 election will represent the first time in decades — if ever — voters will have the opportunity to assess the performance of a liberal majority on the court.

A major theme ahead of the 2023 election was that a Protasiewicz victory would give liberals a majority for the first time in 15 years. But that assertion was misleading, according to Alan Ball, a Marquette University history professor who closely tracks the court.

Between the 2004-05 and 2007-08 court terms, there were three reliably conservative justices — David Prosser, Patience Roggensack and Jon Wilcox, who was replaced in 2007 by Ziegler — and three reliably liberal justices — Shirley Abrahamson, Ann Walsh Bradley and Louis Butler. Justice Patrick Crooks was a swing vote. In non-unanimous decisions during that period, he sided with the liberals 44% of the time and with the conservatives in 48% of cases, according to an analysis from Ball.

“Perhaps the Butler years came to appear liberal in retrospect because conservative dominance of the court grew so pronounced during the ensuing decade,” Ball wrote in a blog post the day after the 2023 election, pointing to the additions of Justice Michael Gableman, Rebecca Bradley and Daniel Kelly to the court.

In April, voters will decide what direction the court will shift as more and more issues land before the Wisconsin Supreme Court, giving it even more influence than the already powerful institution has had in previous terms, legal experts told Wisconsin Watch.

“The court is powerful, to a large degree, as a byproduct of the fact that the more traditionally political branches aren’t playing well with each other right now,” said Chad Oldfather, a professor at Marquette University Law School. “In America, all questions tend to become legal questions eventually, and that process probably gets accelerated in times like this.”

The state Supreme Court’s influence in recent years has been most profound on checking the power of the Legislature, University of Wisconsin Law School professor Robert Yablon said.

“Over the past decade or more, I think you can make the case that it’s the Legislature that was the most powerful branch (of government),” he told Wisconsin Watch in an interview.

But now the court has pushed back on the Legislature’s power, he said, and it may view its rulings as a way to restore balance among the three branches of government.

This article first appeared on Wisconsin Watch and is republished here under a Creative Commons license.