Wisconsin Supreme Court flips liberal, creating a ‘seismic shift’

MADISON, Wis. — Standing in the marble-lined rotunda of the state capitol this month, the Wisconsin Supreme Court’s incoming justice raised her right hand, swore to carry out her job “faithfully and impartially” and launched a new, liberal era on a powerful court long dominated by conservatives.

The fallout was immediate.

Within days, the new majority stripped duties from the court’s conservative chief justice and fired its administrative director, a conservative former judge who once ran for the court. The abrupt changes prompted the chief justice to accuse her liberal colleagues of engaging in “nothing short of a coup.” Before long, Republican lawmakers threatened to impeach the court’s newest member.

Liberal groups, long accustomed to seeing the court as hostile terrain, quickly maneuvered for potential victories on a string of major issues. They filed lawsuits to try to redraw the state’s legislative districts, which heavily favor Republicans. And the Democratic attorney general sought to speed up a case challenging a 19th-century law that has kept doctors from providing abortions in Wisconsin.

“It’s an absolute seismic shift in Wisconsin policy and politics,” said C.J. Szafir, the chief executive of the conservative, Wisconsin-based Institute for Reforming Government. “We’re about to usher in a very progressive state Supreme Court, the likes that we have not seen in quite some time. And it’s really going to change how everything operates.”

The turnaround on the Wisconsin court is the result of an April election that became the most expensive judicial race in U.S. history, with campaigns and interest groups spending more than $50 million.

At stake in that race, with 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 decide 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 shut down a wide-ranging campaign finance investigation into Republicans.

Janet Protasiewicz, a Milwaukee County judge, won by 11 points and flipped control of the court to give liberals a 4-3 majority when she was sworn in on Aug. 1. Protasiewicz, who declined interview requests, spoke openly during her campaign about her support for abortion rights and opposition to what she called “rigged” maps that have given Republicans large majorities in the state legislature. Political strategists said her blunt style helped her win even as court observers fretted that she was making judges look like politicians instead of evenhanded referees.

The tensions surrounding the Wisconsin court reflect the state’s political importance nationally and the increasingly partisan nature of a system in which candidates who vow to be impartial arbiters of the law are chosen by voters in heated political campaigns. Justices are directly elected by voters in 21 states and they must stand for retention elections after being appointed in another 17.

Across the country, deadlocked statehouses and all-or-nothing politics have given state supreme courts more power and often put them in charge of determining election outcomes and abortion policies. The changeover on the Wisconsin Supreme Court comes less than a year after conservatives took over the top court in North Carolina and strengthened their hold on the one in Ohio. In North Carolina, the new majority acted swiftly, handing Republicans victories by reversing decisions the court had made just months earlier on voter ID and redistricting.

Conservatives for decades had the upper hand in supreme court races in key states by fielding judges and prosecutors as candidates, sharpening tough-on-crime messages and securing the support of deep-pocketed groups aligned with Republicans. But in recent years, liberals in Wisconsin have recruited candidates with similar backgrounds and seized on popular political themes. The state Democratic Party, meanwhile, has poured millions of dollars into what are ostensibly nonpartisan races.

The strategy culminated in Protasiewicz’s victory and elicited cheers from liberals across the country. Sen. Elizabeth Warren (D-Mass.) said Protasiewicz would “protect democracy as the state’s newest Supreme Court justice.” Sen. Bernie Sanders (I-Vt.) hailed her victory as a “HUGE night for the progressive movement.” And Vice President Harris said Wisconsin voters had “stood up for abortion rights” by electing Protasiewicz.

Conservative attorneys and groups are strategizing ways to keep issues important to them away from the justices — and calling for amending the state constitution to lock in their past victories.

“I think one of the best ways that conservatives can guard against a progressive state Supreme Court is to take matters into their own hands,” said Szafir, of the Institute for Reforming Government. “We need to be very crystal clear that conservative reforms need to be spelled out in the state constitution to prevent the potentially new activist court from trying to overturn them.”

Liberals have gone on offense. One group on the left filed a lawsuit over voting rules even before Protasiewicz was sworn in and two sets of Democratic voters filed a pair of redistricting cases within days of her taking office. A week later, Wisconsin Attorney General Josh Kaul (D) asked a trial judge to quickly rule on the abortion rights lawsuit in a move that could get the case to the high court faster. And liberal attorneys in the coming months and years could file lawsuits over voter ID, school vouchers, union rights and a 2018 law that limited the powers of Kaul and Gov. Tony Evers (D).

The new liberal majority in Wisconsin consists of four women — one who has been on the court for 28 years and three who joined it over the past five years after serving as prosecutors and trial judges. Over the years, the liberals have honed their skills at writing dissents, knowing that they could do little more than point out what they consider the flaws of the majority. The conservative bloc includes one justice who occasionally votes with the liberals, such as when he joined them in a 4-3 opinion to reject Donald Trump’s request to overturn his presidential loss in the state. The other conservatives sided with Trump.

The new court has not yet heard a case together — but the tension between justices has already exploded into public view. In a routine scheduling order in the redistricting cases, conservative Justice Rebecca Bradley wrote a seething dissent that contended Protasiewicz’s campaign comments about “rigged” maps showed the liberals had already made up their minds to “bestow an electoral advantage for Democrat candidates.”

“‘Rigged’ is indeed an apt description — for this case,” she wrote.

Within days of taking over, the liberals established a committee of three justices that will take on many of the duties that had belonged to Chief Justice Annette Ziegler, a conservative. “It’s nothing short of a coup, really,” Ziegler told a conservative radio host.

In an interview with The Washington Post, she said she recognizes the liberal justices have “a ton of power” to implement changes she does not like but argued they had usurped her authority by taking away so many of her responsibilities. She downplayed the possibility of suing her colleagues but didn’t rule it out.

“I think legal action is not good for the court,” she said. “Honestly, I’m sad that it’s even come to the point where that might be discussed.”

For decades, the most senior member of the court served as chief justice, and under that system a liberal chief justice for years presided over a conservative court. In response, Republican lawmakers scheduled a ballot measure to change the state constitution and voters in 2015 approved allowing the justices to decide who would serve as chief justice. Conservatives on the court chose one of their own to serve in that post shortly after voters signed off on changing the rules.

Ziegler has served as chief justice since 2021 and was selected by her peers for a second two-year term this spring, just before the liberals took over. Chief justices in Wisconsin don’t assign who writes decisions but are responsible for overseeing the state’s judicial system and making certain appointments. Ziegler argues the liberals violated the state constitution by taking away much of her power, while the liberals say they were free to act because the state constitution says the chief justice must operate “pursuant to procedures adopted by the supreme court.”

The justices are slated to discuss the changes as a group next month. Justice Rebecca Dallet, a liberal, said that’s the best way to handle their differences. “It is deeply inappropriate for the Chief Justice to continue to refuse to engage with her colleagues, but instead to publicly litigate these issues,” she said in a written statement.

Ziegler also bristled at the liberals’ decision to fire Randy Koschnick, who had served as the director of state courts since 2017. Ziegler called the move a “raw exercise of overreaching power.”

Koschnick — a conservative who made an unsuccessful run for state Supreme Court in 2009 — recently filed ethics complaints against the four liberal justices. In an appearance on a conservative radio show, he called one justice a “Marxist in a black robe,” accused the liberals of “taking a wrecking ball” to constitutional governance and discussed impeaching the liberals.

“Impeachment, I think, fits squarely,” he said. “Here you have officers of the court who’ve taken an oath to uphold the constitution blatantly violate the constitution three times in three days, and in my view that’s grounds for impeachment.”

He later told The Post he was not advocating for impeachment, but state Assembly Speaker Robin Vos (R) soon after said on a conservative radio show that he was consulting a constitutional scholar and would consider impeaching Protasiewicz if she did not step aside from cases she had commented on. Republicans for months have contended Protasiewicz must not participate in the cases on abortion and redistricting because of what she said on the campaign trail.

“I want to look and see: Does she recuse herself on cases where she has prejudged?” Vos said. “That to me is a serious offense.”

Soon afterward, Vos and other Republican lawmakers filed a motion seeking to push Protasiewicz off the redistricting cases because of her campaign comments and the $10 million she received from the state Democratic Party. The decision on whether to step aside is up to Protasiewicz because conservatives on the court in 2011 issued a 4-3 decision that found justices cannot force one another off cases. If Protasiewicz remains on the case, the Republicans could ask the U.S. Supreme Court to remove her from it for having a conflict of interest. Protasiewicz has not signaled what she will do.

Protasiewicz, like the other liberals on the court, has declined to discuss the impeachment threats, but their allies have rallied behind the liberals. State Sen. Kelda Roys (D) said impeachment proceedings would amount to a norm-shattering effort “to try to overturn the clear will of the voters.” She said conservatives are lashing out because they know they are going to lose high-profile cases.

“They can’t stand it,” she said. “They’re mad. It sucks to lose elections, and I say that with all sincerity. It’s not fun to lose, and they haven’t had to lose that much.”

In Wisconsin, justices can be impeached by a simple majority in the state Assembly and can be removed from office by a two-thirds majority in the state Senate if lawmakers find the justices committed crimes or engaged in corruption. Republicans have those margins in the legislature, but if they remove justices the Democratic governor could name replacements who are just as liberal.

If they are impeached, justices must stop performing their duties immediately — before the state Senate decides whether to convict them. That means the Republican lawmakers could sideline the liberals without removing them. In such a scenario, the liberals would still hold office but have no powers.

Former state Supreme Court Justice Jon Wilcox, a conservative, said he thought the liberals were out of line and feared their actions were the outgrowth of increasingly partisan court races.

“The main thing that concerns me is the politicization of this court,” he said. “Both sides. That’s distressful to me because I tried as a justice when I was here to be … evenhanded and fair-minded. And I don’t think they’re going to have that anymore.”

Tension is nothing new on this court. Twelve years ago, a conservative justice during an argument placed his hands on the neck of a liberal justice in front of other members of the court. No criminal charges were issued and a judicial ethics complaint fizzled out when most of the justices said they could not hear the case because they were witnesses. The conservative justice retired in 2016.

This month at Protasiewicz’s swearing-in ceremony — held just hours before the justices began publicly criticizing one another — former Justice Janine Geske said disputes and controversies 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 bunch 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 change in the court’s majority does not mean liberals can count on victories in every case. While campaigns for the court have become highly political, justices are charged with interpreting state laws regardless of their personal views.

“My experience is she’s really very down-to-earth, very pragmatic,” Geske said of Protasiewicz. “There are going to be surprises on some of the cases, I think. … There are going to be some people that are unhappy sometimes. She is not going to be the liberal Democrat on each case.”

Even before Protasiewicz was sworn in, though, her conservative colleagues were bracing for the change. In a 4-3 administrative ruling, the court in July declined to approve a program that would have given continuing legal education credits to lawyers who take a class in diversity, equity and inclusion. Bradley, the conservative justice most vocally critical of the liberals, predicted the decision would not hold for long, writing, “The new majority will reverse this court’s order at its first opportunity.”

This post appeared first on The Washington Post