Just five months after Wisconsin Democrats saw an electoral victory that swept away statewide Republican control, conservatives are on the upswing following the likely election of Brian Hagedorn to the Supreme Court.
If Hagedorn’s 6,000-vote lead in the preliminary vote total holds, he will replace the liberal-backed Justice Shirley Abrahamson, a prolific force during her four decades on the court, ensuring that conservative-backed candidates will control the court at least through 2023.
That outcome will likely extinguish the possibility of the expansion of voter rights, revisiting controversial cases such as Act 10 — the 2011 law that limited the power of public-sector unions — or tempering the Republican advantage over drawing the state’s political maps in 2021.
Conservative control could also mean the court will prioritize religious interests over public education, and would be unlikely to prioritize cases challenging discrimination.
“Politically speaking, the election was tremendous (for conservatives),” said UW-Madison law professor Ryan Owens. “It was a huge victory.”
The election has some political observers questioning if it’s an early sign of trouble for Democrats in 2020. At the very least, political strategists on either side agree the outcome cements Wisconsin’s status as a battleground state likely to be flooded with campaign spending.
In the view of some liberals, the consequences of liberals napping on their chance to retake the state’s highest court after a decade of conservative control are devastating. Conservative judges profess to uphold the original textual meaning of the law, whereas liberal judges tend to apply more modern interpretations.
“It means at the very least that we’re going to have a court whose judicial philosophy for the most part favors the powerful over the middle class and working people,” said Tim Burns, a liberal attorney who ran for the state Supreme Court in 2018 but lost in the primary to Justice Rebecca Dallet.
But other liberals who believe in the integrity of the court are taking a “wait-and-see” approach with Hagedorn’s addition and are doing their best to believe all justices will hear cases faithfully, putting forth an intellectual effort to apply the correct legal principles.
“I don’t believe that it is as simple as counting up people’s perceived party affiliations and trying to align the parties in any given pursuit with any one ideological side or the other,” said Jeff Mandell, a Madison attorney seeking to overturn Republican lame-duck laws that curb the powers of the governor and attorney general. “Not infrequently you wind up with strange combinations, unexpected combinations of justices on different sides of the issues.”
Conservatives say the legal arguments behind the cases challenging controversial Republican laws have been weak, and that a conservative court will simply raise the bar for the caliber of arguments the court will entertain. They also say Hagedorn’s likely victory insulates conservatives from having hard-won legislative overhauls rolled back.
Conservatives see gains for Legislature
Republicans have been clear that Hagedorn’s victory is a triumph for the GOP’s prospects.
For conservative legal scholars, such as Rick Esenberg, the president of the Wisconsin Institute for Law and Liberty, the prospect of a conservative-controlled court has more nuanced legal consequences, meaning lawyers will need to employ more textualist and originalist arguments to succeed at the court.
The legal consequences, however, are almost certain to have reverberations in the policy world. Esenberg said the conservative-controlled court will increasingly favor legislative authority over executive branch authority. For example, last year the Supreme Court’s conservative majority ended the practice of courts yielding to legal interpretations made by administrative agencies.
That means cases currently before state courts challenging the Republican lame-duck legislation could have even less of a chance of moving forward.
“The court is going to be less likely to aggressively countermand what the Legislature does,” Esenberg said. “You’re probably … not going to see a court that’s striking down a lot of legislation. I think that will probably be true even if the Democrats were to take control of the Legislature in 2020.”
UW-Madison political science professor Barry Burden said having another conservative-backed member of the court matters because the ideological perceptions of the technically nonpartisan judiciary are significant, especially when it comes to contentious cases involving regulation of private and public sector unions and voting rules.
“The truth is their votes do break down on these lines, especially on the biggest high-profile, controversial cases,” Burden said.
Burns believes the political views of justices are far more influential to their decision-making than they let on. He said the mantra that justices don’t let their political partisanship guide them has not been his experience.
“Every political decision comes before the courts and if we don’t think these are being decided based on political values, we’re nuts,” Burns said, adding that he believes conservative judges are more likely to be sympathetic to a Republican Legislature.
Esenberg disagrees, and argues that even among “conservative” justices there are differences in their reasoning, though they may arrive at the same conclusion.
“When we talk about conservative justices we tend to be describing people who are more likely to want to prefer the plain meaning of the text as opposed to reading it in accordance with some larger purpose,” Esenberg said.
Legal scholars on both sides agree that a conservative-controlled court is likely to reduce the chances the Wisconsin Supreme Court would strike down the state’s political maps to be drawn in 2021 if a lawsuit challenges them. The state is constitutionally required to produce new political maps every 10 years after the U.S. Census.
Legal challenges to the state’s political maps can be brought in both state and federal court. Democratic Gov. Tony Evers will be able to veto overly partisan maps drawn up by the GOP-controlled Legislature, but it’s unclear how the ensuing battle in the courts would play out.
Democrats in the state have long been incensed over the state’s Republican-drawn political maps, which have allowed the GOP in the Legislature to command a significant majority of seats despite drawing fewer votes statewide. Proponents for gerrymandering across the nation have argued the framers of the Constitution consciously gave authority to political entities to draw districts.
Esenberg said it’s unlikely a conservative-controlled Wisconsin Supreme Court would take an aggressive attitude toward maintaining majority-minority districts or to intervene at all in cases challenging the perceived competitiveness of individual districts.
Burns said he has no hope the Wisconsin Supreme Court would alleviate partisan gerrymandering.
“If the people are going to have power, they need to change the courts,” he said.
Contest underscores battleground status
The razor thin margins produced in both this week’s state Supreme Court race and in November’s gubernatorial contest are a likely prelude to a deluge of spending in future Wisconsin races.
Joe Zepecki, a Democratic strategist, said the race simply underscores the fact the state is incredibly divided.
“You won’t find a deeper shade of purple than Wisconsin,” he said, adding that the 2020 presidential race is sure to be hotly contested.
Brian Reisinger, a GOP strategist, argued Hagedorn’s win will put an end to the post-November thinking that Democratic successes last year mean Wisconsin is shifting back to its blue status.
“Both sides have ample evidence it’s time to go bigger in Wisconsin than they ever have before,” Reisinger said.
Strategists point to several factors contributing to Neubauer’s likely loss. The late influx of $1.3 million from the Republican State Leadership Committee targeting Republican voters and reminding them of the stakes in the election was chief among them.
Additionally, political ads targeting Hagedorn for his stance against gay marriage may have backfired.
“What those ads might have done is simply rile up the anti-gay and anti-abortion folks all over Wisconsin to say ‘this is our kind of guy,’” said Matthew Rothschild, executive director of the Wisconsin Democracy Campaign.
Lessons for 2020 are mixed. Burden said 2020 presidential turnout will likely be three times higher than that of Tuesday’s Supreme Court race. He added voters in presidential elections are also more susceptible to the personalities of the particular candidates.
“I still think it’s hard to draw a line directly between what happened here and what we’ll see in 2020,” Burden said. “It’s a long time span in Donald Trump years.”