On Tuesday, April 4, either Janet Protasiewicz or Daniel Kelly will be elected to a ten-year term on the Wisconsin supreme court. Although justices are nominally non-partisan, it is widely acknowledged that prior to the retirement of Patience Roggensack, the court had a 4-3 conservative majority. And so, the election will determine ideological control of the supreme court, and, in all likelihood, the outcome of pending or potential cases involving abortion, gerrymandering, election laws, and the power of the Wisconsin legislature over the state’s Electoral College votes in 2024.
Wisconsin is one of 14 states that elects its supreme court justices. During this campaign, which is by far the most expensive judicial election in the history of the United States, the candidates have disagreed sharply about what, if anything, they should say about issues likely to come before them. Although Protasiewicz has made no promises about specific cases, she has laid out her personal and political principles, which she acknowledges would influence her judicial decisions. Kelly, by contrast, insists he doesn’t talk about his politics “for the same reason I don’t campaign on who the Packers’ next quarterback should be. It has no effect on the job.”
Unconvincing on its face, Kelly’s assertion may well be designed to allow him to avoid taking positions during the campaign that are unpopular with Wisconsin voters.
Abortion is the major issue of Protasiewicz’ campaign. She believes every woman has a right “to make a reproductive health decision. Period.” And she has publicly acknowledged endorsements from pro-choice groups. In a debate sponsored by the Wisconsin Bar Association on March 21, Protasiewicz noted that the supreme court is almost certain to address the constitutionality of an 1849 ban on abortions, with almost no exceptions, and arguments that the statute has been superseded by subsequent laws, including a 1985 statute criminalizing abortion only if the procedure is used after “fetal viability.” “If my opponent is elected,” Protasiewicz declared, “with 100 percent certainty,” he will vote to keep the 1849 ban on the books.
“You don’t know what I’m thinking about that abortion ban,” Kelly shot back. “You have no idea.” Kelly did not mention work he did for Wisconsin Right To Life or a blog he posted some years ago, declaring that everyone knows abortion “takes the life of an unborn child.” Although Kelly insisted he made no promises to anti-abortion groups in exchange for their support and donations to his campaign, Wisconsin Right to Life indicated on its website (before taking the post down) that it endorsed “candidates who had pledged to champion pro-life values and stand with Wisconsin Right to Life’s legislative strategy.”
Home to some of the most extreme partisan gerrymandering in the United States, Wisconsin is evenly divided between Republican and Democratic voters, but the GOP controls nearly two-thirds of seats in the state legislature, and six of eight seats in the U.S. House of Representatives lean heavily toward the Republicans. “It is no secret,” Protasiewicz has tweeted, that Wisconsin’s maps of election districts are gerrymandered. The issue, she maintained at the March 21 debate, “is really kind of easy. I don’t think anybody thinks the maps are fair.”
“There you have it,” Kelly replied. “She just told you how she would resolve the case.” When a map is challenged, Kelly insisted, without elaborating, the court’s responsibility “is to fix the legal defects, not the political defects.”
Kelly is also reluctant to discuss the role of the legislature and the courts in the disposition of Wisconsin’s ten electoral votes: “I have no idea what this might do for the 2024 presidential election nor is it relevant to this [i.e. the Supreme Court] race.” Although Kelly maintains that his recommendations to the Republican National Committee in 2020 and 2021 were merely legal advice, dispensed in a 30-minute conversation, Andrew Hitt, former chair of the Wisconsin GOP, told the Jan. 6 committee Kelly’s role was extensive. Moreover, the state party and the Republican National Committee apparently paid him $120,000 for his work on “election integrity” and appointments of an alternate slate of presidential electors.
Kelly is right about one thing: He should not campaign on who the next quarterback of the Green Bay Packers ought to be.
That said, the vast majority of Wisconsin voters across the ideological spectrum surely understand that fundamental principles and judicial philosophies do, inevitably, have an impact on judges’ decisions. And that even in a nominally nonpartisan election for a seat on an ideologically divided Supreme Court, candor about deeply held values, constitutional law, and the relationship between them, is a lot better than dissimulation.
Let’s hope they also recognize a not very artful dodger when they see one.
Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. He is the co-author (with Stuart Blumin) of “Rude Republic: Americans and Their Politics in the Nineteenth Century.”