The new liberal majority on Wisconsin’s Supreme Court has been putting in work, particularly on elections — much to the horror of Republicans in the state’s congressional delegation.
“I’ve always been concerned about the radical leftists on the Wisconsin Supreme Court being super-legislators and legislating from the bench,” Sen. Ron Johnson said. “It’s very unfortunate.”
For the first time in 15 years, Wisconsin has a Supreme Court controlled by liberals following last year’s high-stakes election. It was the most expensive state judicial election in the nation’s history, racking up over $47 million in spending across contributions to candidate campaigns, independent expenditures and undisclosed issue ads. Outside spending skyrocketed: While it ranged up to about $5 million per race in the SCOWIS elections from 2007-2020, it was nearly $29 million for this one.
With a near-deadlocked government — Democratic Gov. Tony Evers and the state’s Republican-controlled legislature have agreed on fairly little — the state’s highest court has a lot to adjudicate. Before Aug. 1 of last year, when Justice Janet Protasiewicz took up her posting, the court tended to side with Republicans.
Times have since changed. With Protasiewicz’s vote, and along ideological 4-3 lines, the court struck down Wisconsin’s local legislative maps last December, which had long been gerrymandered in Republican favor.
That was undoing rather recent work of their own: Those Republican-drawn maps had been adopted by the SCOWIS in April 2022. The new suit was brought directly to the SCOWIS the day after Protasiewicz’s election, bypassing lower courts. Protasiewicz also refused to recuse herself after pressure from state Republicans.
“It’s unbelievable that they reached down and took the maps like they did, but there’s no other reason for them to do that other than political payback,” Republican Rep. Scott Fitzgerald said.
The SCOWIS is also planning on re-adjudicating other election-related work from its conservative era. In 2022, the court ruled in favor of limiting absentee drop boxes. Earlier this month, the court said it would review that decision.
In a dissent, conservative Justice Rebecca Bradley wrote that “overturning [the decision] a mere two years after its issuance is nothing but a partisan maneuver designed to give the majority’s preferred political party an electoral advantage. This is not neutral judging.”
“That’s why I call [this court] a super-legislature, because they don’t see anything as being settled. They believe they have to overturn what has happened previously,” Rep. Tom Tiffany said.
Protasiewicz “needs to recuse herself from any and all cases that come before the Supreme Court that have anything to do with any election,” Republican Rep. Derrick Van Orden said. “The only thing that changed is that the liberals took over the court.”
Democrats disagree. “That’s all ridiculous,” Rep. Mark Pocan said. “I think the court, in general, has been pretty low-key as far as partisanship.”
Last week, Protasiewicz denied a request from conservative law firm Wisconsin Institute for Law & Liberty to recuse herself from a case on the legality of mobile voting sites, saying she can be impartial. The court has yet to decide if it will take the case, which contends with the legality of mobile voting sites.
The SCOWIS also ordered last week that it will decide if counties must release voter incompetency records after a state group sued for them, alleging the number of ineligible voters doesn’t match counts in the state’s public voter database.
The court’s ideologically split votes have come out elsewhere. Earlier this month, the liberal majority made a ruling that ultimately meant religious groups had to do more to prove their charitable organizations qualify for tax exemptions.
Ultimately, partisan squabbling around the court might be inevitable, depending on what ideology has the majority at the time.
“Everything is like that these days, so I wouldn’t expect the court to be immune,” Pocan said.
Eyes are now on whether the SCOWIS will take up a case that could determine the fate of abortion in Wisconsin. A Dane County judge ruled last year that an 1849 law on the books, which conservatives often interpret as banning abortion, only prohibits attacking a woman in an attempt to kill her unborn child. After the ruling, Planned Parenthood, which had paused providing abortions in the state after the overturning of Roe v. Wade, started offering the service again.
Democratic Wisconsin Attorney General Josh Kaul has hinted that if the state’s highest court takes up the case, he’ll ask for a broader ruling on whether the state constitution protects a woman’s right to choose.
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Nuha Dolby is a NOTUS reporter and an Allbritton Journalism Institute fellow.