The Wisconsin Supreme Court normally sits in its main hearing room in the East Wing of the Wisconsin State Capitol building in Madison, Wisconsin. Since 1993, the court has also travelled, once or twice a year, to another part of the state to hear several cases as part of its "Justice on Wheels" program. The purpose of this program is to give the people of Wisconsin a better opportunity to understand the operations of the state supreme court and the court system.[3]
Justices
The court is composed of seven justices who are elected in statewide, non-partisan elections. Each justice is elected for a ten-year term. Importantly, only one justice may be elected in any year. This avoids the sudden shifts in jurisprudence commonly seen in other state supreme courts, where the court composition can be radically shifted if two or three justices are simultaneously targeted for an electoral challenge based on their views on controversial issues. In the event of a vacancy on the court, the governor has the power to appoint an individual to the vacancy, but that justice must then stand for election in the first year in which no other justice's term expires.
After passage of a state constitutional amendment on April 7, 2015, the chief justice of the court is elected for a term of 2 years by the vote of a majority of the justices then serving on the court, although the justice so elected may decline the appointment. Prior to that amendment, the justice with the longest continuous service on the court served as the chief justice.
While the court is officially nonpartisan, its members are generally regarded as having consistent ideological positions. Justices Dallet, Karofsky, Protasiewicz, and Ann Walsh Bradley are frequently described as liberals, while Justices Ziegler, Hagedorn, and Rebecca Bradley are described as conservatives. Liberal justices and candidates are endorsed and electorally supported by the Democratic Party and related organizations, and conservatives have an equivalent relationship with the Republican Party. Justice Hagedorn was considered the court's "swing justice" prior to Justice Protasiewicz's investiture; while his campaign was supported by Republican organizations and he previously served as chief legal counsel to Republican governor Scott Walker, he has sided with the liberal justices in several noteworthy cases.[4]
In 2009, the United States Supreme Court decided Caperton v. A.T. Massey Coal Co., holding 5–4 that a campaign expenditure of over $3 million by a corporate litigant to influence the election of a judge to the court that would hear its case, although legal, was an "extreme fact" that created a "probability of bias", thus requiring the judge to be recused from hearing the case.[6] Wisconsin had adopted a limit of $1,000 for campaign contributions to judges, but it was unclear when mandatory recusal was required.[7] The League of Women Voters petitioned the Court to require a judge to recuse himself or herself from a proceeding if the judge had received any campaign contributions from a party or entity involved in it.[7] Instead, during its 2009–2010 term and by a 4–3 vote, the Court adopted a rule that recusal is not required based solely on any endorsement or receipt of a lawful campaign contribution from a party or entity involved in the proceeding, and that a judge does not need to seek recusal where it would be based solely on a party in the case sponsoring an independent expenditure or issue advocacy communication in favor of the judge. Voting in favor of the new rule were Prosser, Gableman, Roggensack, and Ziegler. Voting against were Abrahamson, Crooks, and A. Bradley. In the opinion of Justice Roggensack, "when a judge is disqualified from participation, the votes of all who voted to elect that judge are cancelled for all issues presented by that case. Accordingly, recusal rules . . . must be narrowly tailored to meet a compelling state interest." In dissenting, Justice A. Bradley called the decision "a dramatic change to our judicial code of ethics" and took issue with the majority's decision to adopt a rule "proposed by special interest groups."[7]
The issue of recusal became a major controversy again after the 2023 judicial election, but with the ideological positions reversed. Conservatives justice Rebecca Bradley and chief justice Annette Ziegler abandoned their previous position, which favored narrow recusal rules, and instead urged a broad recusal standard after Wisconsin elected a liberal majority to the Court in 2023.[8] Their demand was targeted at the newest justice, Janet Protasiewicz, and was paired with a threat from the Republican Assembly speaker to begin an impeachment. At issue was the allegation that Protasiewicz had pre-judged pending redistricting cases, because she had remarked during the campaign that Wisconsin's legislative maps were "rigged". Several complaints were also filed against Protasiewicz with the Wisconsin Judicial Commission, but the commission quickly dismissed those complaints.[9]
Confrontation
On June 13, 2011, a confrontation between Justices David Prosser, Jr. and Ann Walsh Bradley occurred in Bradley's chambers. Prosser, Bradley, and the other justices (except N. Patrick Crooks) were discussing the following day's decision that would overturn a ruling blocking the Wisconsin collective bargaining law. Witnesses stated that the incident happened after Prosser had stated that he'd lost all confidence in the leadership of Chief Justice Shirley Abrahamson.[10] Bradley later accused Prosser of putting her in a chokehold.[10] Prosser denied the allegations and asked for "a proper review of the matter and the facts surrounding it".[10] The incident was investigated by the Dane County Sheriff's Office. Witnesses to the incident disagreed about what had happened[10] and neither Prosser nor Bradley was charged by a special prosecutor.[11] Ethics charges brought against Prosser based on Bradley's allegations were never adjudicated due to the lack of a quorum on the Court after recusals.[12]
Campaign expense
Although elections to the Wisconsin Supreme Court are nonpartisan, campaigns for the seats sometimes generate partisan fervor. As a result, elections have become increasingly expensive; growing from $4.3 million spent in the 2016 race[13] to $45 million in the 2023 race.[14]
Chief justice amendment
A 2015 constitutional amendment changed the process by which the chief justice is selected. From 1889 to 2015, the chief justice was simply the longest continually-serving member of the court. The 2015 amendment changed the chief justice role to a two year term, elected by a majority of the members of the court. Opponents recognized this as an attempt by the Republican legislature to empower the conservative majority on the court by removing liberal justice Shirley Abrahamson from the chief justice role. Republicans in the legislature said it was an effort to promote democracy on the court, following several years of contentious deliberations.[15]
Immediately after passage of the amendment, the conservative members of the court elected Patience Roggensack to replace Abrahamson as chief justice. Abrahmson sued in federal court, but eventually abandoned the effort.[16]
In May 2020, in response to a lawsuit brought by the Republican-led state legislature, the Court ruled 4–3 to strike down an order issued by Secretary-designate of the Department of Health Services Andrea Palm, which extended the stay-at-home order previously issued by Governor Tony Evers.[18] The portion of the order that kept all K-12 schools closed for the remainder of the school year remained in effect.[19] The deciding vote to strike down the Secretary-designate's order was by Daniel Kelly, who had recently lost his bid for re-election to Jill Karofsky.[20]
The Wisconsin Supreme Court has played an increasingly important role in the redistricting process in Wisconsin. The Court was first involved in redistricting in the 1890s, when they struck down two versions of state legislative maps and set standards for equal representation and district boundaries which the Legislature largely adhered to until the guidance was superseded by federal guidance in the 20th century.[21] The Court next played an important role in the 1950s redistricting, when the Legislature passed two redistricting plans in consecutive sessions (1951 & 1953). At that time, the Court ruled that it was unconstitutional for the Legislature to enact two redistricting plans for the same census.[22] The following decade, the Court took the extraordinary step of drawing the map themselves, in 1964, after the Governor and Legislature had failed to come to an agreement.[23]
After the federal Voting Rights Act of 1965 and related United States Supreme Court cases, the Wisconsin Supreme Court backed off from redistricting issues and deferred to federal courts. That changed after the United States Supreme Court case of Gill v. Whitford, in 2018, which significantly reduced federal jurisdiction of gerrymandering cases. In 2022, the Wisconsin Supreme Court took on redistricting again. But the state court lacked many of the laws, procedures, and precedents of the federal courts which had settled redistricting cases for the previous four decades. In their absence, the Wisconsin Supreme Court struggled with the case, which was further exacerbated by a significant partisan split between the court's three conservatives and three liberals.[24]
Going into the 2022 case, Wisconsin's legislative map had among the worst partisan biases in the country.[25][26] At the outset of the case, the court's three conservatives, along with the swing vote Hagedorn, established a novel legal concept that all parties should pursue the "least changes" to the existing map necessary to bring it into compliance with the applicable laws.[27] The Republican legislature and the Democratic governor each submitted map proposals. The court quickly found that Evers' proposal actually best adhered to the court's "least changes" guidance, nevertheless, the three conservatives who had established that guidance voted against his plan. The plan was adopted by the court's three liberals, A. Bradley, Dallet, and Karofsky, with the swing vote of Hagedorn.[28]
Wisconsin's Republican legislature, however, appealed the case to the United States Supreme Court, which threw out the Wisconsin decision in a shadow docket opinion.[29] The U.S. Supreme Court stated that the adhoc process adopted by the Wisconsin Supreme Court had failed to give proper consideration to questions of racial gerrymandering under the federal Voting Rights Act. Without further deliberation, in response to the U.S. Supreme Court's action, Hagedorn switched his vote to the Republican plan, although it suffered from an identical process defect. The Republican legislative map was then utilized for the 2022 elections.[30]
Justices are elected in nonpartisan elections for ten-year terms. Only one justice may be elected in any year. Justices are elected in the spring election, being the first Tuesday in April. If there are more than two candidates, a spring primary is held on the third Tuesday in February.
Conservative Justice Michael Gableman did not seek re-election in 2018.[33] Two county judges, Rebecca Dallet and Michael Screnock, ran for the open seat.[34][35] A third candidate, Tim Burns, did not make it to the general election in the February 20 primary. The progressive Dallet was elected in the April 3 general election.[36]
Incumbent progressive Justice Shirley Abrahamson, who had served on the court for 42 years, did not seek re-election in 2019. Conservative Appeals Court Judge Brian Hagedorn was elected to succeed her in the April 2 general election over fellow Appeals Court Judge Lisa Neubauer and took her seat on the court on August 1, 2019.
On April 7, 2020, progressive Jill Karofsky defeated conservative incumbent Daniel Kelly as Justice of the Wisconsin Supreme Court. The election was held during the coronavirus pandemic, forcing many voters to choose between voting by mail, waiting in long lines for hours, or not participating at all.[37]
Conservative Justice Patience Roggensack did not seek re-election in 2023. Former conservative Justice Daniel Kelly faced progressive Judge Janet Protasiewicz on April 4, 2023, and lost.[38] Judges Jennifer Dorow and Everett Mitchell also ran, but they were eliminated in the February 21 primary.[39][40] The race attracted widespread media attention, as it would determine the ideological balance of the court for at least the next two years. Protasiewicz's victory could determine how the court rules on future cases involving abortion, voting rights, and labor rights,[41] while redistricting was decided on in Clarke v. Wisconsin Elections Commission.
"Wisconsin", Caselaw Access Project, Harvard Law School, OCLC1078785565, Court decisions freely available to the public online, in a consistent format, digitized from the collection of the Harvard Law Library
