Heavy voter turnout among Republicans in Tuesday’s election and millions spent on her behalf helped to elect incumbent Justice Rebecca Bradley to the Supreme Court, giving the state’s highest court a more stable conservative majority.
But Bradley’s 52-48 victory over state Appeals Court Judge JoAnne Kloppenburg doesn’t necessarily mean a major shift in how the court behaves in deciding cases, experts say.
Experts say Bradley, whom Gov. Scott Walker appointed to the Supreme Court last fall, brings a background in business and other civil law — experience not typically seen on the state’s highest court — and her presence could mean justices in the conservative majority will feel more free to write separate concurring opinions.
Ryan Owens, a political science professor at UW-Madison who studies the Supreme Court and judicial issues, said with a 5-2 conservative majority, justices may feel less fearful of splitting off from the “coalition” at the risk of diluting the opinion.
“This would be particularly useful for justices who are nearing re-election,” said Owens. “They could write a separate opinion and still stake out their own personal, sincere preference in the case but not worry about losing the coalition. So I think it gives them more flexibility.”
Bradley received 1,017,233 votes compared to 925,929 for Kloppenburg. Although the race is nonpartisan, conservatives backed Bradley and liberals backed Kloppenburg.
Bradley may have been helped by the fact that the presidential primary — held on the same day — inspired more Republicans to vote. Overall, 1,101,046 people voted for a Republican presidential candidate on Tuesday compared to 1,003,904 people who voted for a Democrat.
Kloppenburg has now lost two Supreme Court elections in five years.
Backed by conservatives
Appointed by Walker to the high court following the death of Justice N. Patrick Crooks, Bradley has been backed by conservatives throughout her judicial career that began about three years ago.
Crooks was considered to be more unpredictable than other justices on the court, and Bradley is expected to be a more reliable vote for the conservative majority.
Rick Esenberg, president and general counsel of the conservative Wisconsin Institute for Law and Liberty and backer of Bradley, said he expects Bradley to side with the conservative majority in cases concerning business but that she “might occasionally surprise some people.”
“She has a background which is a bit different than anybody else on the court with the exception of maybe the chief justice (Pat Roggensack),” Esenberg said. “I think we’re going to see that in particular in commercial business cases.”
Owens said the new majority could mean it will be less likely that justices in the minority will be seeking to pull a justice in the majority over to their side.
“At this point it’s much less likely that they will successfully be able to do that,” he said. “That might change their behavior in terms of trying to bargain.”
Owens said he doesn’t necessarily believe that future Supreme Court elections would not experience the level of contention that the 2016 race saw because “they are not as critical” in changing the majority of the court.
“There are a lot of things that could occur between now and the (next) election, so it’s tough to say it’s going to simmer down,” he said.
Conservative justices Annette Ziegler and Michael Gableman will be up for re-election in 2017 and 2018, respectively, while liberal-leaning former chief justice Shirley Abrahamson’s seat will be up in 2019.
Esenberg said he doesn’t expect Ziegler’s re-election bid to be a contentious race, but the potential for an impassioned race does exist for Gableman given the heated race the justice participated in against incumbent Louis Butler in 2008.
The creation of a more solid conservative majority coincides with a trend of the winners of the past seven state Supreme Court races — including Bradley’s — each receiving the most support of independent groups, including unregulated spending on thinly veiled campaign commercials known as “issue ads.”
Conservative groups have spent heavily — two dollars for every one spent by liberal groups — in recent years to help produce a right-of-center majority on Wisconsin’s highest court.
Overall, outside interest groups have spent an estimated $16.6 million on issue ads alone since 2007 on behalf of Supreme Court candidates, according to data compiled by the Wisconsin Democracy Campaign.
In this year’s race, conservative groups outspent pro-Kloppenburg groups almost 4 to 1.
The democracy campaign found pro-Bradley groups spent $2.7 million while pro-Kloppenburg groups spent about $710,000.