With a new liberal majority on the Wisconsin Supreme Court, political lines are already being drawn.
To the chagrin of conservatives, liberals who now control the court 4-3 have made several administrative changes since Justice Janet Protasiewicz was sworn in August 1. They have fired the director of state courts and tempered the powers of the conservative chief justice.
To find out more, WUWM's Maayan Silver talks with Barry Burden, UW-Madison politics professor and director of the Elections Research Center. Below is an excerpt of the conversation, which has been edited for length and clarity.
What’s been going on at the Wisconsin Supreme Court?
Barry Burden: The new liberal majority has really taken action quickly to replace personnel to establish their role in deciding how the court will operate and rolling back some of the procedural changes that conservatives have put in place. And that has angered the chief justice and other conservative justices who have fired back. And it's become now a sort of a personal grievance between the two sides with some name calling and accusations about the bad faith in which the other side is acting.
Conservatives, especially the chief justice, have argued that liberals have been acting in secret, out of order and trying to behave as a kind of ideological cabal to put their preferences above the good of the court.
The liberals are complaining that the chief justice has been reluctant to even talk with them or to call regular meetings, that she's preventing the court from moving forward, and that a majority of justices do actually get to decide how the court operates, including appointment of administrators and other things.
So, there are really fundamental disagreements on who was in the right and what the court ought to be doing.
What are some of the administrative changes liberals have made?
Burden: The courts new liberal majority fired the director of the state court system, Randy Kaushik. He had the job since 2017, after being appointed by the then-conservative majority. Justices also voted Friday to limit the powers of conservative Chief Justice Annette Ziegler. They created a new committee composed of Ziegler and two justices picked by the liberal majority that would in some cases, take away Ziegler's powers to make solo decisions. They also voted to make the court’s administrative meetings open to the public and to form a committee to study when justices should recuse themselves from cases.
In 2015, legislative Republicans pushed through a constitutional amendment that voters ultimately approved to allow the courts majority to choose the chief justice instead of relying on seniority. Could the new court just vote to replace Justice Ziegler?
Burden: I think it is possible for liberals to choose a chief justice of their preference from their side of the ideological spectrum. The last two chief justices have been selected by fellow members of the court. And that reflects this change that the court made to its procedures through a ballot initiative about eight years ago. So liberals would seem to have the power to be able to do that if they wish.
Can you contextualize this animosity on the court? Have we seen it before and where has it come from?
Burden: The current conflicts harken back to 2010 and 2011, around the time of Act 10, when conservative then-Governor Scott Walker’s signature legislation gutting collective bargaining in the state was passed. There was a conflict between conservative Justice David Prosser and several left leaning justices. At that time, there was so much dispute about the role of public sector unions, voter identification, other things that were being passed in that first year of the Walker administration, and we had apparently some personal altercations between justices.
It was sort of a he said/she said story that was never quite resolved in the public's mind. But there was definitely some personal animosity and some name calling between justices and a real breakdown of the decorum and the collegiality of the court.
Since then, the court has broken into fiercer battles between the liberal camp and the conservative camp. They've disagreed on basic procedures about how the court ought to operate, as we mentioned about how the Supreme Court chief justice ought to be selected, about whether administrative meetings ought to be public. And then of course, about the merits of these cases that have dealt with COVID and education policies and election laws and, and soon abortion and redistricting and other things.
So there really is very little trust, I would say between the two sides, and it does have about a 15 year history, reaching back to the early 2010s.
What’s the potential harm to Wisconsin?
Burden: Public trust in the court could erode and be much more partisan. This is true about the U.S. Supreme Court as well. In Wisconsin, I think we're likely to see a similar sort of polarization of public reactions play out.
And unlike the U.S. Supreme Court, the Wisconsin Supreme Court is narrowly divided. It's just a liberal majority with this new justice joining this past week. That's a one seat margin that could easily be reversed in the next Supreme Court election. So, it's possible that the court could bounce back and forth over the next several years, with conservatives sometimes having a slim majority, liberal sometimes having a slim majority, and potentially jerking their decisions back and forth from the left to the right, reversing one another in subsequent years. This could be a kind of uncertain and tumultuous period, if that happens.
Is there a solution?
Burden: There are two possible remedies. One is for the justices to simply talk face to face with one another and try to settle some of the administrative matters about how the court operates. It's easier for them to poke at one another when they're communicating via press releases or interviews, rather than being in the chambers talking to one another as humans. And, so, I think building back up some of those social relationships would be helpful.
Another path is to think about some institutional changes that might make the court function better. One commission studying the court proposed longer terms than 10 years, and not allowing justices to run for reelection. The idea was that without having a reelection bid possible, they would not be raising money, they would not be on the campaign trail, they wouldn't be thinking about the political connections of the groups that come before them in the court, as parties in cases and maybe would feel more freedom to act independently rather than as a part of an ideological grouping,
I don't know if that precise remedy is the thing to do, but it does seem like thinking about the design of the court, how it operates, what its rules are, would make a lot of sense.
