Wisconsin’s Supreme Court Implosion
Wisconsin’s Supreme Court Implosion
Liberals take charge; conservatives scream bloody murder.
TRUTH BE TOLD, THE WISCONSIN SUPREME COURT has never, in the years I’ve been writing about it, been a happy place. There have always been epic personality clashes, stark ideological differences, and abundant bad behavior. In 2011, I broke the story of how one conservative justice placed his hands around a liberal justice’s neck during a heated conversation.
Yeah, that really happened.
But now, following the costliest judicial election in U.S. history (by far), which shifted the court’s ideological balance from conservative to liberal—and as it prepares to take on momentous cases over abortion access, redistricting, and how elections are run—the Wisconsin Supreme Court seems unhappier than ever.
“You are making a mess of the judiciary, the court and the institution for years to come. This must stop,” conservative Chief Justice Annette Ziegler informed her liberal colleagues in an August 28 email. “I have no confidence in the recent hostile takeover and the chaotic effect it has had on the court, staff, and the overall stable functioning of the courts.”
Ziegler is in a rage over the newly minted majority’s decisions to oust the state director of courts and to create a committee to handle some of the tasks that had been in the purview of the chief. In her view, this “is nothing short of an unprecedented coup.”
Justice Rebecca Dallet, a liberal, fired back. “Let me be crystal clear,” she wrote in an email to Ziegler. “The attempt to obstruct the proper business of the court and the furtherance of justice comes from you.”
Such testy exchanges have become common since the August 1 public swearing in of Justice Janet Protasiewicz, who was elected in April to a ten-year term by an 11-point margin. The race, which saw $56 million in spending, well more than the previous record of $15 million in Illinois in 2004, put liberals in control of the court for the first time in decades.
The newly created administrative committee approved by the court’s liberal majority would consist of Ziegler and two court liberals, Justices Dallet and Jill Karofsky. This caused the court’s conservatives to implode, with Ziegler calling this committee “illegitimate and unenforceable” and Justice Rebecca Bradley deriding its architects as a “cabal of extreme leftists.”
While it’s true that the creation of this committee, which Ziegler has vowed to spurn (“I will not condone such lawless destruction of the constitution, the judiciary, or the court”), strips power from the current chief, it is hardly the first time that control of the court has involved, as Ziegler phrased it, “a raw exercise of overreaching power.”
In 2015, the court’s conservative majority promptly tossed longtime Chief Justice Shirley Abrahamson after the passage of a state constitutional amendment backed by Republicans to have the job of chief determined by majority vote, not on the basis of seniority. Abrahamson sued but lost. Ziegler was elected to a two-year term as chief in May; the next chief election will take place in 2025, after the court’s longest tenured current member, liberal Ann Walsh Bradley, is up for re-election.
And then there is the issue over the firing of the state courts director.
RANDY KOSCHNICK, A CONSERVATIVE judge who had run for his own place on the court in the past (he lost a “low-key” race to Abrahamson in 2009), had been Wisconsin’s director of state courts since 2017. He was terminated without explanation on August 1. The court’s new majority picked Audrey Skwierawski, a Milwaukee County circuit court judge appointed to that role by conservative former Governor Scott Walker, as interim director.
Ziegler, in her August 28 email, argued that Skwierawski’s ongoing role as a judge precludes her from serving as courts director. Republican members of the state legislature have made the same argument.
The Wisconsin state constitution prohibits any judge from holding “any other office of public trust, except a judicial office, during the term for which elected.” Defenders of Skwierawski’s appointment maintain that the job of state courts director is a judicial office, and hence the appointment is proper. Any legal challenge over the matter would likely come before the Supreme Court. Koschnick has filed complaints with the state Judicial Commission.
In my role as president of the Wisconsin Freedom of Information Council, a nonpartisan group that seeks to promote open government, I have criticized the court’s liberal majority for firing Koschnick without specifying a reason. Koschnick had been, in my experience, “competent, responsive and a defender of court transparency.” Even if being a conservative was a big part of the reason he was selected for this job, it should not be the only reason he got the ax.
But the stance being taken by Ziegler and other court conservatives is much more sweeping and threatens to drive a stake through the heart of court operations. On the same day last week as she ripped her liberal colleagues a new one, Ziegler sent a blistering email to Skwierawski, informing her, essentially, that she was persona non grata. This is how it began:
You are not lawfully appointed as director. Your appointment was done by a rogue group of four justices, in secret and without our knowledge or approval. It is in violation of the constitution which prohibits a judicial officer from serving as a director.
Ziegler, who is proceeding to find a new pick for the position, upbraided Skwierawski for assigning reserve judges under her name, saying “You never asked me for permission. You do not have my permission. Stop.” Skwierawski, in a response to Ziegler, said signing such orders was part of her job, and that “I vehemently disagree” there was anything illegal about her appointment. This is how Skwierawski described the situation:
Either you will work with me as the interim director and therefore we can set up communication between us to achieve things for the people of this state or you do not recognize me as the interim director and do not intend to work with me under any circumstances. Your actions to date lead inexorably to the latter conclusion.
Hello, colleague.
PERHAPS THE MOST ENLIGHTENING DEVELOPMENT involving the Wisconsin Supreme Court’s new liberal majority is its decision to reopen the court’s administrative conferences to the public. They were closed in 2012, after an open conference session that I covered as a reporter for the Wisconsin Center for Investigative Journalism, now Wisconsin Watch. I was, I believe, the only reporter in the room.
During this last-hurrah open conference, the court’s two liberals, Abrahamson and Ann Walsh Bradley, joined with conservative Patrick Crooks, an occasional swing vote, to argue that the public had a right to see and hear these discussions. Crooks said closing these meetings would be “a terrible thing” for the court to do. “This would be a major mistake, to close what has been open.”
The remaining four justices, all conservatives, felt it would really be better for everyone if these discussions happened behind closed doors. Justice Gableman said this would promote “consensus building and collegiality.” Justice Patience Roggensack, who snapped at Abrahamson during the proceeding, said, “To sit out here in public and philosophize . . . is really not the best use of our time.”
But the award for honesty goes to Justice Ziegler, who said the court’s image had been hurt by its public exchanges: “We do harm to ourselves as an institution and to judges around the state sitting at this table.”
In other words, she wanted these discussions to take place in private because of how bad they made the court look. In 2017, the court conservatives extended this closure to some rules conferences.
Protasiewicz campaigned on the promise to reopen these discussions, which her conservative challenger, former Justice Dan Kelly, opposed. She also promised to help set some sort of objective recusal standard for state Supreme Court justices, which the new court has taken steps toward doing.
Now state Republicans and court conservatives have their underwear in a bundle over Protasiewicz’s declaration that she will not recuse herself from cases regarding legislative redistricting. (Similar concerns will almost certainly be raised over Protasiewicz hearing any challenge to the state’s effectively total ban on abortion, given her support as a candidate for reproductive rights.)
During the campaign, Protasiewicz referred to the state’s current voter boundaries, which have been extensively gerrymandered, as “rigged,” which they undeniably are. Republicans in Wisconsin, which is fairly evenly divided politically, hold six of the state’s eight congressional seats and two-thirds majorities in both the state assembly and senate.
Justice Rebecca Bradley (yes, she shares a first name with one justice and a last name with another) has cleverly borrowed Protasiewicz’s terminology, saying her participation in any case dealing with redistricting challenges would produce a “rigged” outcome. As she put it: “These four justices will adopt new maps to shift power away from Republicans and bestow an electoral advantage for Democrat candidates, fulfilling one of Protasiewicz’s many promises to the principal funder of her campaign.”
Besides Bradley’s substitution of the pejorative term “Democrat” for “Democratic,” her rant is deliberately dishonest on at least two fronts. First, Protasiewicz has never said how she would rule on this or any other case; she has merely expressed her views on “disputed political or legal issues”—something the U.S. Supreme Court, in a 2002 case, Republican Party of Minnesota v. White, said judicial candidates cannot be prohibited from doing.
As writer Bruce Thompson noted in Urban Milwaukee: “The question for the Wisconsin Supreme Court is not whether the districts are rigged. They are. The issue the court must consider is whether such rigging is contrary to the Wisconsin Constitution. So far as I know, Protasiewicz has not addressed this.”
Second, it is wildly unlikely that the state’s political maps will ever be redrawn to “bestow an electoral advantage for Democrat candidates.” The most likely outcome of a successful challenge to partisan redistricting would be the drawing of maps that are as free as possible from political manipulation. Republicans would almost certainly retain a significant advantage even under a nonpartisan scheme, given how spread out the Republican vote is compared to Democrats, who are more than ever concentrated in cities.
ANOTHER POSSIBLE OBJECTION to Rebecca Bradley’s demand that Protasiewicz recuse herself from a case even though current court rules leave that decision entirely up to her is that Bradley joined other court conservatives, including Ziegler, in rejecting recusal rules proposed by a group of retired judges in 2017. The court’s existing rules, which expressly give justices the right to rule on cases involving parties that have given them campaign contributions or endorsements, were actually written by two of the state’s largest business groups, Wisconsin Manufacturers & Commerce and the Wisconsin Realtors Association, in 2009. Ziegler, who in 2007 received an unprecedented reprimand from the court for hearing cases involving the bank her husband worked for, was among the conservative majority that voted in favor.
Republicans in the state legislature have demanded in court filings that Protasiewicz recuse herself from hearing these cases. The liberal law firm Law Forward has countered that this amounts to a GOP attempt to “nullify the results” of the April election. The Republicans have agreed to pay three outside law firms $1.8 million in taxpayer dollars to defend the current maps.
Even if the recusal rules proposed in 2017 had been adopted, they would likely not require Protasiewicz to step aside from hearing redistricting challenges. While Protasiewicz has pledged to recuse herself from cases involving the Democratic Party of Wisconsin, which contributed nearly $10 million to her campaign, the party is not involved in either of the two redistricting lawsuits that have been filed so far.
But no matter. If Protasiewicz refuses to recuse herself from cases she clearly doesn’t have to recuse herself from, Republicans in the state legislature are proposing to impeach her—which, thanks to partisan gerrymandering, they have the votes to do. “I’m not saying it’s definitely happening,” said Assembly Speaker Robin Vos of the possibility of impeachment. “But we have to take a look at it.” (The Wisconsin constitution allows lawmakers to remove state officials “for corrupt conduct in office, or for crimes and misdemeanors.”)
For a while, it seemed as though there may be protection against this happening because, if Protasiewicz is impeached, the state’s Democratic governor, Tony Evers, would get to pick her replacement.
But then veteran Wisconsin journalist Patrick Marley, now with the Washington Post, explained in an August 27 article how legislative Republicans might make an end run around this line of defense. If the state assembly voted to impeach Protasiewicz, which it could do with a simple majority, that would put an immediate halt on her ability to hear or weigh in on any cases. Then, all the state senate would need to do is nothing: For however long it waited to take up the matter of voting to convict, Protasiewicz would be sidelined.
Of course, Protasiewicz could always just resign, creating a vacancy that Governor Evers could fill. But isn’t that sort of asking a lot?
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