Can the Wisconsin State Supreme Court Restore Collegiality?
The Wisconsin State Supreme appears to be as polarized as the rest of the state. It is a sad statement to make. We have often stated that ethical leaders are truthful, transparent with public information, unifiers who work to represent their entire constituency. The actions taken by the court in the last 14 years have been moving away from these principles. It should be noted that at one time, the court had an established reputation for following these principles. In fact, in 1999, the court became one of the first state high courts — if not the first — to hold its administrative meetings before the public. Though not perfect, at that time the Wisconsin Supreme Court was working to serve as a role model for government.
Things began to shift in 2010. In a report by NPR that year served as a watershed for the politicization of WI Supreme Court elections. Nearly $9 million was spent on the highly politicized 2010 Wisconsin Supreme Court election and Justice Louis Butler was the first incumbent to lose an election in nearly 40 years. Subsequent campaigns continued the politicized pattern.As reported in Wisconsin Watch, the Court first voted to restrict open administrative practices in 2012, limiting open hearings to petitions from outside groups for Rule changes. In 2017, the conservative majority voted to discontinue the practice of holding administrative discussions in public. At the meeting, Gableman said it was time to end the experiment of holding meetings in public. Voting to end public dialogue were the court's conservatives: Chief Justice Patience Roggensack and Justices Rebecca Bradley, Michael Gableman, Daniel Kelly and Annette Ziegler. Liberal Justices Shirley Abrahamson and Ann Walsh Bradley voted against the measure.
In terms of campaign spending, things took off from there as the money spent on Supreme Court elections has skyrocketed. Incredibly, $42 million was spent on the 2023 Protasiewicz/Kelly race, which broke a national record for state supreme court elections. Roughly two-thirds of the money spent in the 2023 Wisconsin Supreme Court election came from outside groups, a record $28.8 million, according to the Wisconsin Democracy Campaign. In a politically divided nation, state supreme court races became recognized by both parties as a key variable impacting the national political landscape. When Janet Protasiewicz won election to the WI Supreme Court in April 2023, she was very public in her statements in support of abortion rights, a key state issue following the 2022 ruling by the U.S. Supreme Court. Given Wisconsin’s outdated state law on abortion, and the divided positions of the Governor and legislature, it became clear that the issue would be settled in the courts.
The 2023 transition from a conservative-led to liberal-led Supreme Court got off to a rocky start. Once a national model for transparency, the court took another step in the other direction. One day after the swearing-in of Janet Protasiewicz swung the Wisconsin Supreme Court majority, the four liberal members of the high court fired Randy Koschnick, the director of the state's courts system. The move invited a strong condemnation from Chief Justice Annette Ziegler, a conservative, who described it as "dangerous conduct" that the full court did not agree to. Ziegler wrote, "Allowing all seven justices the opportunity to be heard and having the benefit of thoughtful discussion and debate before a formal vote is taken is key to a properly functioning court.”
The liberal members saw this differently. According to Ruth Conniff, the four progressives who now make up the majority responded that they went ahead and conducted court business without Ziegler only after she refused to join them. They added that instead of participating, Ziegler chose to air her grievances to the media as reported by the Wisconsin Examiner. They added that in firing the conservative chief justice’s right-hand man, Randy Koschnick, they were replacing him with Milwaukee Circuit Court Judge Audrey Skwierawski, an appointee of former Republican Gov. Scott Walker, who will answer to the whole court, not just to Ziegler.
Meanwhile, Randy Koschnick felt the action to dismiss violated established rules for the court. He stated in an interview broadcast on WORT. “The rules basically say, ‘all seven justices agree to a schedule ahead of time.’ It gets set. And in this case, it begins in September and that’s when these matters are discussed. All seven justices under the rule have to agree to change the schedule; there was no agreement to change the schedule here. And the four liberal justices made the decision without even telling the other three justices that it was being considered. So, that goes against everything in the history of how the Supreme Court operates as a collegial court. It doesn’t follow due process, it’s rogue lawlessness, it’s a big threat to the court.”
Suffice to say, given the developments of the past 14 years and the recent transition in the Wisconsin court, the stage is not set for a return to collegiality. The actions of the court over the next two years will be an indicator if there are any attempts to move in this direction. The individual who may be considered to be pivotal is Justice Brian Hagedorn. As reported in PBS Wisconsin, his votes have been key for every major decision by the Wisconsin Supreme Court during the last two years. Elected as a conservative, Hagedorn most often gave them a 4-3 advantage. But sometimes he sided with the three liberals, infuriating his conservative colleagues. For example, around an hour before the Electoral College was to meet regarding the 2020 presidential election, Hagedorn and the liberals ruled 4-3 to reject a Trump lawsuit and uphold Biden's win in Wisconsin.
At this time, it is unclear how the overall dynamics of the court will play out. Time will tell. At this stage, Justice Hagedorn earns a green light for his independent positions taken in support of fairness for all constituents. All other justices are poised to earn red flags, in terms of one or more of the four principles. Their actions over the next two years will tell us a lot.