Because no results were released from Tuesday’s pandemic election in Wisconsin, there were no winners. But there was one clear loser: the notion that the judiciary is non-partisan and apolitical.
Wisconsin had a presidential primary vote, but that was not even close to the main event. The focus of both political parties was on the race for a seat on the Wisconsin Supreme Court.
It’s hard to overstate the degree to which the fight over control of the state Supreme Court has become a partisan and cultural flashpoint in Wisconsin, as the campaigns have become increasingly contentious, polarized and expensive. In some respects, the scorched-earth fights over the Wisconsin bench presaged the most vitriolic battles at the federal level where conservatives, with the eager assistance of President Donald Trump, have turned the courts into perhaps the single most important measure of ideological dominance.
The intensity has bled over into the Wisconsin high court itself. In recent years, one justice was accused of physically assaulting another; Republicans engineered the removal of the long-serving liberal chief justice; and campaigns have seen allegations of sexual misconduct and religious bigotry.
Meanwhile, the stakes continue to get higher.
The high court has played a pivotal role in upholding major pieces of GOP legislation including Act 10 in 2011, which limited public employee collective bargaining rights. The court, which now has a 5-to-2 conservative majority, also shut down a long-running investigation into the campaign of former Governor Scott Walker for campaign finance violations, and upheld the GOP Legislature’s move to limit the powers of incoming Democratic Governor Tony Evers after his defeat of Walker. The court will also play a decisive role in the upcoming fight over redistricting as well as a host of hot-button social issues such as abortion and religious liberty.
And, of course, it was that same court which overturned Evers’ order to postpone the election, thus forcing Tuesday’s shambolic vote, in which voters stood in line for hours, 6 feet apart, in rain and sleet.
That was fitting, since the battle over the court is the reason that the GOP defied pleas to postpone the vote: Republicans calculated that holding the election in the midst of the pandemic gave incumbent conservative justice Dan Kelly a better chance of holding his seat. We won’t know who won until votes are tallied and released on Monday.
While the election of judges is technically nonpartisan, over the past two decades all pretenses have been dropped, as the races have become high-stakes proxy battles between Democrats and Republicans. Spending on the current campaign between Kelly and progressive challenger Jill Karnofsky topped $8 million and, following the pattern of recent elections, the contest was both intensely ideological and personally bitter.
During the campaign, Karnofsky, who is running as an advocate of “social justice,” accused Kelly of “running his Supreme Court campaign out of the Wisconsin GOP headquarters,” and noted that he was touting the support of President Donald Trump. But after advancing in the primary election, Karnofsky herself accepted $1.3 million in cash and in-kind contributions from the state’s Democratic Party.
“A Better Wisconsin Together,” an outside group tied to Democrats and liberal groups spent a further $1.87 million on Karnofsky’s behalf; while the Republican State Leadership Committee spent nearly $900,000 backing Kelly. The state’s Republican-leaning chamber of commerce, Wisconsin Manufacturers and Commerce, dumped in $700,000 for television ads backing Kelly, and Americans for Prosperity invested roughly $400,000 in canvassing, mailings and digital ads on behalf of the conservative justice.
The hyperpoliticization of the races for the high court actually preceded the Walker years, but the evolution of the court’s politics has tracked the shift in the state’s politics. Campaigns that used to focus on issues such as crime and judicial philosophy, now are often dominated by social issues as the divisions become more overtly partisan and increasingly tribal.
Lively contests between liberal and conservative candidates for the court stretch back to the 1990s, but it was only after progressives briefly took control of the majority in 2004, that the state’s business community and the GOP shifted their focus decisively to seizing and controlling a majority on the court.
Conservatives accused the liberal majority lead by Chief Justice Shirley Abrahamson of being aggressively activist, ignoring precedent and endangering the state’s business climate by encouraging frivolous litigation. And, indeed, many of those complaints were valid. Liberals did indeed overreach and the backlash was intense.
In April 2008, after an unusually nasty campaign, conservative Michael Gableman defeated incumbent liberal justice Louis Butler, who had been appointed to the seat by Democratic Governor Jim Doyle. The race saw the first full-scale deployment of special-interest funded “independent” groups that poured millions of dollars into the race, which was dominated by accusations that Butler was “soft on crime.” Gableman ousted Butler with nearly 52 percent of the vote, winning 60 of the 72 counties in the state.
His election also gave conservatives a 4-3 majority on the court two years before the election of Scott Walker.
That would prove decisive after Walker pushed through legislation limiting collective bargaining amid mass protests that triggered recall campaigns and a flurry of court challenges.
The state Supreme Court not only found itself at the center of the increasingly bitter partisan divide, but the justices themselves were also sharply divided. The April 2011 Supreme Court election between incumbent conservative Justice David Prosser Jr. and his liberal challenger, Joanne Kloppenberg, had been expected to be a sleepy affair but turned into a fiery proxy battle over Walker’s Act 10, and Prosser was only narrowly reelected after a statewide recount.
How bad were the divisions? Two months after the election there was a confrontation between Prosser and one of the liberal justices, Ann Walsh Bradley, in Bradley’s chambers. A group of justices engaged in a heated discussion of the next day’s decision that would overturn a ruling by a lower court that had blocked Walker’s law. Witnesses differ about what happened next, but Bradley accused Prosser of putting her “in a chokehold.” Prosser denied the allegations and no charges were issued. But the incident reflected the toxic atmosphere on the court.
From there, judicial politics just got nastier.
In 2015, conservatives succeeded in ousting Abrahamson, by passing a constitutional amendment requiring the court’s chief justice to be elected by a majority vote, rather than chosen by seniority.
The next year, there was yet another race for justice. Walker had appointed Judge Rebecca Bradley (no relation to Justice Ann Walsh Bradley) to the court, but when she ran for reelection she faced withering attacks from both the left and the media. One front-page headline in the Milwaukee Journal Sentinel described what it called an “extramarital affair.” Liberal groups also surfaced articles she had written in college in which she referred to gay people as “degenerates” and “queers.”
But the stories about Rebecca Bradley seemed to spark a backlash as conservatives rallied around her. In April 2016, she beat her liberal challenger, Kloppenberg (who had run against Prosser in 2011) by nearly 100,000 votes.
The conservative winning streak seemed to come to an end in 2018, when liberal Milwaukee judge Rebecca Dallet became the first nonincumbent in more than two decades to win a seat on the high court. As the Journal Sentinel noted: “It was the first time in 23 years that a liberal candidate who wasn’t an incumbent won a seat on the high court.”
Once again, the race broke down along partisan lines. Dallet was endorsed by former vice president Joe Biden, Senator Cory Booker (D-N.J.), and actively supported by a group led by former attorney general Eric Holder. Her conservative challenger was backed by the state GOP, the National Rifle Association and business groups.
By winning the open seat, Democrats felt they were finally poised to win control of the court if they were able to hold the seat vacated by Abrahamson’s retirement. Until the election in April 2019, liberals were confident that their candidate, Judge Lisa Neubauer would win the seat. Outside progressive groups poured nearly $3 million into the race, far out-spending her conservative challenger, Brian Hagedorn, until the very end of the campaign.
But the court contest was quickly consumed in the culture wars. Critics made an issue of Hagedorn’s involvement in a Christian school which, they charged, banned LGBT students and staff, because its code of conduct banned “immoral sexual activity.” The code defined that as “any form of touching or nudity for the purpose of evoking sexual arousal apart from the context of marriage between one man and one woman.”
Hagedorn was also criticized for writing in a 2005 blog post, “Christianity is the correct religion, and that insofar as others contradict it, they are wrong.” He had also written a blog post saying that he agreed with the late Justice Antonin Scalia’s dissent in a Texas case overturning anti-sodomy laws. “The idea that homosexual behavior is different than bestiality as a constitutional matter is unjustifiable,” he wrote at the time.
Spooked by the controversy, the state Realtors’ organization withdrew its endorsement of the conservative judge. But Hagedorn fired back, insisting that he was being attacked for his religious faith. “Some of the arguments made against me are a blatant attempt not just against me but against people of faith more generally,” Hagedorn said at a campaign event.
As I wrote in a post-election piece for the Atlantic, social conservatives once again rallied around him. “The backlash was overwhelming,” one Republican activist told me. “The left made this about bigotry, but Christians saw this as an attack on their faith.” Others saw a replay of attacks on U.S. Supreme Court Justice Brett Kavanaugh, which helped turn out Republican voters in November 2018.
Hagedorn won the election by less than 6,000 votes out of more than 1.2 million cast. For the time being, Democratic hopes of taking back the Wisconsin court seemed dead.
But the 2020 contest gave liberals reasons for optimism and Republicans reasons to be nervous. Justice Kelly, who had been appointed by Walker, faced an election that was set to coincide with the Democratic presidential primary, which would presumably drive a huge turnout of liberal voters. In 2018, during the lame-duck session of the Legislature after Walker’s defeat, Republicans openly considered the possibility of moving the date of the court election to make it easier for Kelly to win. The idea was dropped when officials estimated that a standalone election would cost millions of dollars.
Kelly’s problems were multiplied when Republicans insisted that Trump be unopposed in the Republican primary, a move that seemed likely to depress GOP turnout. So until recently, conservatives faced the very real possibility that Kelly would be drowned in a tsunami of Democratic votes.
But then the Democratic race was suddenly over. And the Covid-19 pandemic began to spread. Republicans saw their opportunity and took it, even though it forced thousands of Wisconsin voters to make the grim choice between voting and protecting their health. Legislative leaders blocked any changes in the law to delay or modify the April 7 date.
No one who has followed the court was surprised when the Wisconsin Supreme Court ruled 4 to 2 (Kelly recused himself) to reject the Democratic governor’s attempt to delay the April 7 vote. For days, Evers had insisted that he lacked the legal authority to move the election; and even as he issued his order on Monday he seemed to concede his lack of authority.
The Wisconsin ruling was quickly followed by a 5 to 4 ruling by the U.S. Supreme Court that overturned a lower court order extending absentee balloting in the state.
Both decisions were narrowly drawn, but legal observers couldn’t help but notice that they came down on ideological lines. SCOTUS’ decision in the Wisconsin case, law professor Leah Litman wrote, “is an ominous harbinger for what the court might allow in November in the general election.”
The “nightmare scenario” feared by legal scholars, the New York Times reported, “would be litigation over recounts in the wake of a close election marred by irregularities.”
That’s especially true in Wisconsin, where the lines between partisan politics and the judiciary have long since been erased. Given the letter of the law, the court’s election decision might well have been the correct one, but when it comes to the legitimacy of elections and judicial independence, appearances matter. And the appearances are ugly.