Divisive Court Election Poised to Reshape Swing State Wisconsin

Candidates to fill a pivotal seat on the Wisconsin Supreme Court are saying what’s usually the quiet part out loud.

Former state justice Daniel Kelly accuses his rival, Judge Janet Protasiewicz, of wanting to substitute her wishes for enacted law. Protasiewicz describes Kelly as an extremist who’ll twist the state Constitution to meet partisan objectives. The characterization that sways the most votes on April 4 will help determine whether Wisconsin keeps an abortion ban enacted 60 years before women there could vote.

The winner will be key to deciding whether the Republican-dominated state Legislature will have the upper hand on state policy. The new justice also may help determine Electoral College results in the only state where both the 2016 and 2020 presidential elections were decided by less than 1 percentage point.

“We are not used to state high court elections having such salience or noting them, but given the way in which state courts are going to make decisions, they’re going to be hugely important,” said Melissa Murray, a New York University School of Law professor.

It’s a clash of ideas that will only grow following US Supreme Court decisions on abortion, partisan gerrymandering, and election rules, Murray said in an interview. “Wisconsin is not going to be the last, but for now it’s the most important one in this off-cycle year,” she said.

The Wisconsin candidates are explaining how they approach cases and leaving no doubt about their philosophies.

Photos provided by the campaigns

Former Wisconsin Supreme Court Justice Daniel Kelly and Milwaukee County Circuit Judge Janet Protasiewicz.

Kelly, a self-described “constitutional conservative,” is a former Milwaukee Federalist Society leader, a legislative oversight manual author, and a lawyer who helped advise Wisconsin Republicans’ effort to contest the 2020 presidential election results.

Gov. Scott Walker (R) appointed him to the Wisconsin high court in 2016. He lost an election to remain on the bench in 2020.

On the campaign trail he’s telling voters at bars, gun shows and churches that Protasiewicz will decide cases based on her own policy preferences, and turn the court into “a super-legislature” by overruling the Republican-controlled state House and Senate.

Judicial power is a “loan from the people,” he said, so judges must stick to the words in the law because those are the loan’s terms.

“I refer to it as constitutional conservatism because we’re preserving the original meaning of the US and Wisconsin Constitution,” Kelly said in an interview. “People need to know what the law does or does not allow, so stability in the law is at a premium.”

‘Fixed Principles’

Kelly scored endorsements and financial backing from Fair Courts America, a national conservative group funded by Wisconsin packaging billionaire Richard Uihlein, and from national and state anti-abortion groups who believe Kelly’s method of interpretation will preserve the state’s 1849 abortion ban.

Also stumping for Kelly is Wisconsin Supreme Court Justice Rebecca Grassl Bradley. She said that originalism, which she and Kelly ascribe to, isn’t designed to achieve a politically conservative policy outcome. Instead, it seeks out the history, text and traditions at the time laws were written. That places the power with the legislature that passed the law or the voters who ratified the constitution, she said.

“We’re supposed to be guided by the law alone, by the fixed principles of the law,” Bradley said. “That’s why we wear the black robe, it’s symbolic of covering our individuality.”

After the 2020 redistricting cycle the Wisconsin Supreme Court hewed closely to that principle and declined to redraw congressional district lines, while New York and North Carolina courts did the opposite.

Instead, a conservative majority of the Wisconsin court had parties submit maps with the least change to the current lines in order to stick closest to the maps drawn by the state Legislature in the 2010 cycle.

‘Common Sense’

With less than a month left to campaign, longtime Milwaukee prosecutor and now trial court Judge Janet Protasiewicz is telling gatherings in bars, union halls, and church congregations that she’s guided by personal values of women’s rights and political fairness, not just by what people thought when a law was passed.

“We need to bring common sense back to the Wisconsin Supreme Court, follow our laws and uphold the constitution,” she said in an email. “More than anything, the politically-charged decisions that we see from the U.S. Supreme Court are being mirrored by right-wing justices and candidates like Dan Kelly here in Wisconsin.”

While justices normally tread lightly on topics they might see bubble up to their bench, Protasiewicz, has openly called the state’s Republican-favoring state and Congressional district lines “rigged.” She’s said that the US Supreme Court case putting abortion’s legality in state hands was wrongly decided. And she accuses Kelly of partisanship.

“The problem with Dan Kelly’s interpretation of the constitution is that he always bends it to fit his extreme political views,” said Protasiewicz, who is backed by Democratic-aligned groups, labor organizations and abortion rights groups. “We need to follow the law and uphold the constitution, not abuse it to force a political ideology on the people of our state or justify decisions that benefit political organizations.”

‘Balance The Values’

The philosophical clash is headed for a real-world collision.

Wisconsin Attorney General Josh Kaul’s (D) challenge to the state’s abortion ban is before the Dane County Circuit Court in Madison, and is nearly certain to end up before a Wisconsin Supreme Court that last year split 4-3 on half of its cases, so either Kelly or Protasiewicz will become a deciding vote.

Protasiewicz’s argument is in line with the one taken by the dissenters in the Supreme Court’s Dobbs case who agreed with the high court’s 1973 decision granting a federal right to an abortion, while Kelly’s position tracks the one held by the majority which found no constitutional right to an abortion, said University of Michigan Law School Professor Leah Litman, a Dobbs critic.

The decision was like trying to “determine what rights women have today by looking back to a time when women didn’t have any rights at all,” she said. “They’re not allowed to vote—or anything—and asking what rights they had then? To no one’s surprise that results in pretty undemocratic pathologies, because our country was once a patriarchy.”

Conservatives have praised the Dobbs decision, saying there’s no US constitutional text, history or tradition necessary to support a federal abortion right.

Protasiewicz-backer and sitting Justice Rebecca Frank Dallet said in an email that she and Protasiewicz analyze text, history and tradition but also “the need to balance the values of the majority and those the Constitution serves to protect from the majority.”

“The truth is that the constitution is made up of broad principles stated generally,” she wrote. Applying phrases like a protection against “unreasonable searches and seizures” to modern day issues like drone surveillance or searching a cell phone makes no sense “because these situations were unimaginable when the constitution was written.”

After the US Supreme Court put states in the driver’s seat for abortion rights, and the 2019 Rucho decision left state courts as the only legal venue for challenges to partisan gerrymandering, Wisconsin’s election stands out for the clarity of the choice before voters.

“It’s important for people to realize what the stakes are in these elections,” Litman said. “It is not a good thing when you have these elections being run in abstract generalities that don’t describe what is actually going to happen when you elect one justice versus another.”

To contact the reporter on this story: Alex Ebert in Madison, Wisconsin at aebert@bloomberglaw.com

To contact the editors responsible for this story: Katherine Rizzo at krizzo@bgov.com; Bennett Roth at broth@bgov.com