With retiring conservative Justice Patience Roggensack leaving the bench, control over the Wisconsin Supreme Court hangs in the balance as candidates race to fill the court’s empty seat.
Because the outcome of this race will determine the court's ideological makeup, there is a lot at stake on both ends of the aisle. Critical decisions on hot-button issues from election laws to abortion rights could all be determined by the Wisconsin Supreme Court within the coming terms.
With a 4-3 conservative majority currently on the bench, Roggensack’s retirement opens the door for the majority to flip in favor of the liberal justices. The winner of the April 4 race will likely play a key role in how the court rules on these controversial topics in Wisconsin.
Changing court campaign strategies
Wisconsin Supreme Court races have historically been nonpartisan. Since justices serve independent of political party affiliation, candidates are barred from making “pledges, promises, or commitments” regarding issues or cases that are likely to appear before them in court, per the judicial code.
However, that doesn’t completely bar candidates from expressing their political ideals and preferences.
“To be ‘impartial’ does not mean to have no principled commitments,” University of Wisconsin-Madison Political Science professor Howard Schweber said in an email to The Daily Cardinal. “It means only to apply those commitments fairly to the case and parties before the judge.”
Unlike the 2020 and 2016 Wisconsin Supreme Court races where the presidential primary was on the same date as a presidential primary election, turnout for this particular election will likely depend on interest in this race and issues that could be on the court’s docket, according to PBS Wisconsin.
The court handed down a number of recent 4-3 decisions that banned absentee ballot drop boxes, limited Gov. Tony Evers’ pandemic response and approved new legislative district maps that all but ensure Republicans maintain control over the state Assembly and Senate for the next decade — even if they receive a minority of statewide votes, according to Wisconsin Watch.
But Schweber thinks close rulings on controversial issues may be changing candidates’ voter turnout strategies.
“In general, candidates' willingness, or eagerness, to stake out ideological positions likely results from the fact that judicial elections have become increasingly partisan so that appealing to one's ‘base’ is an electoral strategy for judges just as much as it is for legislators,” he said.
Court may decide on abortion rights
Arguably the largest issue looming in the court’s near future is an abortion rights lawsuit filed by Attorney General Josh Kaul last June following the U.S. Supreme Court’s ruling in Dobbs v. Jackson, which eliminated the constitutional right to abortion.
With the overturning of Roe v. Wade, Wisconsin reverted to an 1849 law that bans all abortions except for those medically necessary to preserve a mother’s life.
Evers, a staunch opponent of Wisconsin’s anti-abortion law, called for its repeal throughout his reelection campaign for governor. Evers previously said he is unwilling to compromise and wants the 1849 ban abolished
With Republicans unlikely to overrule the ban in its entirety, Kaul’s legal challenge — which argues a 1985 Wisconsin law legalizing abortions before a fetus can survive outside the womb invalidates the 1849 law — is Democrats’ next feasible alternative.
The lawsuit is currently pending in the Dane County Circuit Court, and it’s unclear if or when the lawsuit will reach the Wisconsin Supreme Court. But if the lawsuit reaches the court after a new justice takes the bench, whoever wins the April 4 election could be the deciding vote.
“After the Dobbs decision, the question of abortion rights depends on the states, both their legislatures and their courts' interpretations of state constitutions,” Schweber said.
Schweber doesn’t expect a conservative majority court to expand abortion access.
“Ex-Justice Daniel Kelly has been particularly outspoken, describing abortion as equivalent to murder, but there is little question that if either of the conservative candidates is elected, abortion rights in Wisconsin will be extremely limited,” he said.
Candidates get unconventionally loud
Amid those stakes, liberal Wisconsin Supreme Court candidate Janet Protasiewicz has been outspoken about her stance on abortion. Both she and fellow liberal candidate Everett Mitchell cited the Dobbs decision as the U.S. Supreme Court’s worst ruling in the last 50 years, according to the Milwaukee Journal Sentinel.
Protasiewicz was the first of the four candidates in the race to run statewide ads, launching her first two as part of a $700,000 advertisement buy in the weeks leading up to the Feb. 21 primary election.
In an ad released on Jan. 26, Protasiewicz said, “I believe in a woman’s freedom to make her own decision on abortion. It’s time for a change.”
In a second ad released the same day, women talked about why they are voting for Protasiewicz, stating that “She believes in our freedom to make our own decisions when it comes to abortion” and that the “extremists want to ban abortion.”
Protasiewicz’s open and forthcoming approach regarding her opinions has not been accepted by all candidates. Jim Dick, a spokesperson for Kelly, went as far as to accuse Protasiewicz of disregarding the law when it differs from her personal beliefs.
“Her promise to put her thumb on the scale of justice to achieve her preferred outcomes is offensive to the very idea of a written constitution,” he told the Associated Press in January. “It breaks faith with the people of Wisconsin who insist that their justices apply the law, not their personal preferences.”
Yet, Wisconsin’s three largest anti-abortion groups have endorsed Kelly, the AP reports.
One of the organizations that endorsed Kelly, Pro-Life Wisconsin, states on its website that they can only support candidates “who demonstrate a commitment to protect preborn children — in all circumstances and at all stages of development — as full persons under the law.” The organization did not endorse Jennifer Dorow, the other conservative candidate.
Mitchell hasn’t been as outspoken about his stance on abortion rights during his campaign. But in a statement following the overturning of Roe v. Wade, Michell referred to himself as an “ally” of abortion rights.
“I will always use my male privilege to stand with and to stand up for women’s reproductive rights,” Mitchell said. “We must turn our attention to the people of Wisconsin, the Wisconsin Supreme Court and the Wisconsin Constitution to protect a woman’s reproductive choice.”
Anna Kleiber is a state news reporter for The Daily Cardinal.