The “Apolitical” Wisconsin Supreme Court
Warren LeMay, “Wisconsin State Capitol, Capitol Square, Madison, WI,” September 22, 2022.
Courts are surrounded by political battles. We knew this when President Franklin Delano Roosevelt attempted to expand the Court to favor his New Deal legislation. We knew it when current Attorney General Merrick Garland was denied a hearing in 2016 because Republicans had the majority in the Senate and enforced a “rule” in which Supreme Court Justices cannot be confirmed during an election year. And we knew it beyond the shadow of a doubt when Republicans defied their own made-up rule and confirmed Amy Coney Barrett to the Supreme Court of the United States during an ongoing presidential election in which the president who nominated her lost. Yet, some hate to think that they are. Rhetoric around courts, and especially the Supreme Court, attempt to clear any political suspicion from judicial nominees while simultaneously blatantly critiquing the political nature of the confirmation process. The electoral races of some state Supreme Court Justices, however, defy this apolitical rhetoric and instead seem to embrace it.
Some states have allowed the electorate to choose who sits on their state’s highest court, a process quite different from the nomination process for who sits on federal district courts, courts of appeals, and the Supreme Court. In states like New Mexico, Alabama, and Louisiana, among others, state supreme court elections are partisan, with primaries and general elections that parties sponsor. These partisan elections illustrate two clear points with regard to the public perception of the role of courts in our government: 1) people advocate for judges when their methods of jurisprudence align with party goals and 2) people want and expect judges who will represent the interests of those who elect them.
Other states have nonpartisan elections, where a party affiliation is not listed on the ballot. One of the states that has nonpartisan elections for Supreme Court Justices is Wisconsin, where an election just this year determined the ideological leaning of the court. Contrary to the nonpartisan characterization, the influx of money that went into the race from politically-affiliated groups illustrates that the election was anything but nonpartisan. This election was the most expensive state Supreme Court race in history, with conservatives and liberals quickly picking sides to financially support their Supreme Court candidate. The amount of money being spent to support either candidate was no doubt due to the position the court was in after Justice Patience Roggensack announced her retirement. Justice Roggensack was identified as a hardline conservative, who often voted with the conservative bloc of the court. After her retirement and before the Supreme Court election, the court’s ideological makeup was three conservative Justices and three liberal, with the 2023 Supreme Court race determining the ideological leaning of the court until the next Supreme Court election in 2025. After recent decisions affecting abortion, voting rights, and other pressing issues that came before the Supreme Court of the United States, the Wisconsin Supreme Court could play an extremely important role in affirming or refuting the decisions of SCOTUS regarding matters of state law. For example, an abortion ban from the 1800s is still on the books in Wisconsin, and the Wisconsin Supreme Court may make the final decision whether the law is still enforceable. Critically, this election also established the court that would hear any election disputes that would arise from the 2024 presidential election, including redistricting and election procedure disputes.
The direct role of courts in presidential elections really began with the case Bush v. Gore, when the Supreme Court put a stop to the recount of Florida votes cast in the extremely close election of 2000. Stopping the recount guaranteed Bush the win in Florida and, subsequently, the victory in the presidential race. While courts had been petitioned in the past with regard to access to voting, gerrymandering, and the like in cases such as Shaw v. Reno, the Court became more closely tied to large scale elections when the decision in Bush v. Gore seemed to have been the tipping point in the 2000 race. In short, Bush v. Gore set the stage for the lawsuits the former president brought to courts in 2020 around the country. Courts seemed to be the medium through which to seek resolutions to election disputes.
The 2020 election saw many lawsuits brought by former president Trump contesting the certification and counting of votes in numerous states. One of these states was Wisconsin, where a claim was brought to invalidate a “sufficient amount” of votes in order to change the election results in favor of the former president. This claim was ultimately rejected on a 4-3 vote by the Wisconsin Supreme Court. The same court only a few months later passed down a judgment in which ballot drop boxes were made illegal, again by a 4-3 vote. Wisconsin affirmed Biden’s victory by refusing to throw out Democratic votes, while also delegitimizing Biden’s victory in the election after ruling ballot drop boxes illegal. This kind of back and forth litigation that surrounded the 2020 election could make a resurgence in the 2024 race, where the electoral votes of Wisconsin could play a crucial role in deciding the victor.
Ultimately, Judge Janet Protasiewicz won the race in early April. No one can be sure of what is coming down the pipeline, but all eyes were on the election in Wisconsin. Voters around the country in states with Supreme Court elections are looking to elect judges who will represent their preferences on the bench whether that means declaring an abortion ban from the 1800s enforceable, or ballot drop boxes illegal, or partisan gerrymandering unconstitutional. Either way, the involvement of interest groups and parties in these state elections clearly have political intentions. With the power courts have in our system of government, Wisconsin voters felt that everything was on the line.