Historic decisions made by the Wisconsin Supreme Court
The Wisconsin Supreme Court race will be a defining election for the state this year.
Whether liberal-backed Judge Janet Protasiewicz or conservative-backed former Justice Daniel Kelly win, the election will either maintain or alter the narrow ideological balance of the court. This will greatly influence important, upcoming cases around abortion and gerrymandering.
The state supreme court will also wield tremendous influence in the face of a divided government and eroding federal rights.
"I think the whole refrain that we hear from candidates saying that they'll follow the law, they won't legislate from the bench, that that kind of oversimplifies things," Dustin Brown, Senior Staff Attorney with the State Democracy Research Initiative of the University of Wisconsin Law School says. "Because cases that reached the state Supreme Court, they often pose very difficult questions about what a statute means or what the state constitution means, or how a law applies to a particular set of facts. And in many cases, reasonable jurists could disagree about the outcome," he says of the position.
One example he gives is the court's decision on ballot drop boxes and the ability for voters to use them to return absentee ballots.
"So, the question was, well, does that language prohibit drop boxes? Four justices thought, yes, it does prohibit drop boxes, because the statute says to 'the clerk', and a box is not the clerk, whereas three dissenters, they disagreed, because in their view, a clerk could always choose to use a drop box as its mechanism for receiving ballots. So it's, you know, one statute, and there's room to interpret that same statute in different ways," Brown says.
Brown says that starting in 2008 there was shift in the way the court operated. First, because that was the start of the court's conservative majority, which still exists today. He adds, "I think the other important features of the last 15 years are when you look at the court in relation to the other branches of government, because the court it doesn't exist in isolation, it exists in response to and interacts with the other branches. And so when there are power shifts in the other branches that affects the role that the Wisconsin Supreme Court plays."
At that time, when Republicans gained control, they were able to advance an aggressive policy agenda. Including things like Act 10 which limited collective bargaining rights for public employees, a photo ID requirement for voting was adopted, and that's also when the redistricting plan with maps that were heavily gerrymandered in favor of Republicans were adopted.
"So during those Republican-controlled years, some of the most high profile cases before the Wisconsin Supreme Court involved challenges to those signature pieces of legislation. But, in each of those cases, the legislation survived," Brown says.
Looking to the future of the court, there are two big issues that will be at play: abortion access and redistricting. Brown says the U.S. Supreme Court's decision to overturn Roe vs. Wade has had a huge impact on states because, "the court explicitly ... described these issues as ones that should be handled at the state level. And in Wisconsin, there's kind of a perfect storm right now. Because we have this election where the balance, the ideological balance on the Wisconsin Supreme Court is at issue where it could shift from a conservative majority to to a liberal majority. And also, these two huge questions on abortion, and redistricting are are very big questions right now in Wisconsin," Browns says.
Brown explains that there isn't a pending lawsuit challenging the existing legislative maps but, "it is anticipated that challenges to these maps would be broad in the event that the balance of power on the Supreme Court shifts," Brown explains.