Voters could tip Wisconsin Supreme Court left on abortion, gerrymandering

MADISON, Wis. — For 14 years, conservatives have controlled the Wisconsin Supreme Court, issuing decisions that upheld limits on unions, affirmed a voter ID law, expanded gun rights, curbed the powers of the Democratic governor, banned absentee ballot drop boxes and established political districts that ensured Republican dominance in the state legislature.

Now, a reliably conservative justice is retiring, and voters will decide in April whether liberals or conservatives have a majority.

It’s a decision that will have sweeping consequences, as the court in the coming years is likely to decide whether to uphold the state’s near-total ban on abortion. It also could wade into disputes over gerrymandering and the outcome of the next presidential election.

Although the race is technically nonpartisan, court candidates in recent years have worked closely with political parties, touted endorsements from advocacy groups and telegraphed how they would rule on cases. The issues in the campaign mirror those from November’s midterm elections, with the liberal candidates concentrating on abortion rights and voting rules and the conservative candidates arguing for judicial restraint and signaling their opposition to gay rights.

This year, spending could surpass the $10 million record set in 2020, with much of that money coming from dark-money groups that run hard-edge ads attacking would-be justices.

The race features two conservatives and two liberals and a Feb. 21 primary will narrow the field to two for the April 4 general election. Political observers expect one liberal and one conservative to make it through the primary.

One of the conservative candidates is Jennifer Dorow, a Waukesha County judge who told a conservative radio host she is the “most electable” candidate in part because of the national exposure she received for her handling of a chaotic trial of a man who drove a vehicle into a Christmas parade. Daniel Kelly, who spent four years on the state Supreme Court and was endorsed by former president Donald Trump in 2020, called himself the only candidate with “a proven public record of being a constitutional conservative.”

On the liberal side, Milwaukee County Judge Janet Protasiewicz said she is running to “save democracy” and released an ad in which she’s dressed in a judicial robe with lacing around the collar that nods to the one worn by the late U.S. Supreme Court justice Ruth Bader Ginsburg. Dane County Judge Everett Mitchell, who would be the first Black justice elected to the high court, said he was running in part to show young people that “justice has my skin color.”

Three of the four candidates said in interviews they fear partisan affiliations could tarnish the image of the court but said there is no way to win without the help of the parties. The fourth, Dorow, declined interview requests but has touted her Republican ties over the years.

For all the anticipation, the race has been largely a staid affair so far. Seated at a long table at a recent candidate forum, Kelly and the liberal candidates outlined their views on important decisions, while Dorow read from notes and avoided giving hints of her views. The liveliest moment came when the candidates were asked about their favorite founding fathers. Kelly named Alexander Hamilton, and Mitchell jokingly threw up his hands and said, “C’mon, man, everybody knows Alexander Hamilton. You’ve seen the musical.”

Often, just 20 percent of eligible voters show up for court elections, a small fraction of the number that turn out in races for governor and president. Republican lawmakers are seeking to place questions on the April ballot about bail and public assistance programs that they hope will boost conservative turnout. Liberal groups are suing to keep them off the ballot, arguing legislators didn’t follow state law in advancing the measures.

With a Democratic governor and a Republican legislature, Wisconsin’s knottiest issues are often decided by the state Supreme Court. In recent years, the conservatives have often stuck together in 4-3 rulings, but at times one of their members, Brian Hagedorn, has joined the court’s liberals to form a majority. That happened after the 2020 presidential election, when the court issued a string of rulings narrowly upholding Joe Biden’s victory.

On the campaign trail, the liberal candidates have excoriated the court for its decisions on redistricting and voting rights. They have praised the rulings against Trump and his allies and reminded voters that the court could again play a role in upholding the will of voters.

Kelly, the conservative who lost his seat on the court in the April 2020 election, suggested he supported the rulings on the last presidential election as well, saying he “did not see an argument that would be capable of disenfranchising all of the people who cast votes in that election.” (Dorow, the other conservative candidate, has not publicly stated her views on the cases.)

Much of this winter’s campaign has focused on abortion. In the coming years, the court is all but certain to decide the fate of Wisconsin’s 1849 ban on abortion in all cases except to save the life of a mother. Dormant for 49 years, the ban went into effect last summer when the U.S. Supreme Court issued the Dobbs v. Jackson Women’s Health Organization decision, overturning the Roe v. Wade case that had established a nationwide right to seek an abortion. A lawsuit over Wisconsin’s ban is now playing out before a trial judge in Madison.

The liberal candidates panned Dobbs, with Protasiewcz calling the decision “judicial activism at its worst” and Mitchell saying it marked “one of the first times that I ever saw a right that had been cemented be taken away.”

Kelly, who once wrote that Democrats favored abortion “to preserve sexual libertinism,” said his political views are irrelevant to the work of the court. Dorow told a conservative radio host that the Dobbs decision “honors the constitutional framework that we have in this country” by leaving it to states to decide whether to allow abortions. Kelly and Dorow have both received endorsements from antiabortion groups.

Dorow offered a clue to her views in her application for an appointment to the bench in 2011. Asked in the application to name one of the worst opinions of recent decades, she cited Lawrence v. Texas, the 2003 case that established the right to same-sex intimacy and helped pave the way for the court’s ruling 12 years later guaranteeing a right to same-sex marriage. Dorow called Lawrence “a prime example of judicial activism at its worst.” She declined during the candidate forum to say whether she stood by that position.

Kelly expressed similar views when he sought his appointment to the state’s high court in 2016 from then-Gov. Scott Walker (R), calling U.S. Supreme Court Justice Antonin Scalia’s dissent in the same-sex marriage case one of the best opinions in decades. The liberal candidates in interviews said they favored the decisions on same-sex intimacy and same-sex marriage.

For a decade and a half, Wisconsin’s court races have become increasingly politicized, leading the candidates to question whether justices and would-be justices can handle cases impartially. In this campaign, the candidates have fought over last year’s 4-3 decision establishing state legislative districts that greatly favor Republicans.

“My values are that I protect democracy, that I believe everybody’s vote should count, that currently I don’t think that the maps are fair — I actually think they’re outrageously unfair,” Protasiewicz said in an interview.

In the interview and at the candidate forum, Protasiewicz called the maps “rigged.” Democrats are poised to bring a gerrymandering lawsuit if liberals take control of the court, and Kelly questioned whether she would act fairly.

“I think when someone tells you what their values are in answer to a legal question, they’re telling you how they’re going to decide a case,” Kelly said.

As an attorney, Kelly defended a set of maps drawn in 2011 that also favored Republicans. He said as a justice he wouldn’t take politics into account if he had to consider a redistricting case.

This week, the state Republican Party filed an ethics complaint against Protasiewicz over her comments about cases. Her allies dismissed it as a political stunt.

Protasiewicz, who has greatly out-fundraised her opponents, is the only candidate with a TV ad so far. A spending frenzy could come soon. A group affiliated with Republican megadonor Richard Uihlein has started to run radio ads for Kelly and has promised to ultimately spend millions of dollars on his behalf.