Progressive activists now have the opportunity to reshape Wisconsin law on a wide array of matters.
Progressive activists now have the opportunity to reshape Wisconsin law on a wide array of matters.
O n Tuesday, progressive Milwaukee judge Janet Protasiewicz defeated conservative candidate Dan Kelly by eleven points in Wisconsin’s supreme-court election, handing progressive activists a 4–3 majority on the court and the opportunity to reshape Wisconsin law on a wide array of matters, from abortion to redistricting to public-sector unions.
Kelly’s 55.5–44.5 loss yesterday was almost identical to his 55.2–44.7 loss in the 2020 supreme-court race. Kelly had been appointed to Wisconsin’s high court by Governor Scott Walker in 2016, and was seeking a ten-year term in 2020. His loss that year coincided with a competitive Democratic presidential primary between Joe Biden and Bernie Sanders that gave Democrats a big advantage in the down-ballot supreme-court election.
Kelly’s loss in 2020 was just one reason why Democrats wanted to run against him this time around, and spent more than $2 million against his conservative opponent Jennifer Dorow in the preliminary round of voting in February. Dorow had gained popularity as the judge who presided over the murder trial of the man who committed the Waukesha Christmas parade massacre. And Kelly could be tied to Trump: In 2020, he’d been hired to provide legal counsel to the Republican Party of Wisconsin, and the GOP chairman of the party signed up to serve as an “alternate elector” for Trump. The chairman said he’d sought legal advice from Kelly, but Kelly would not say what advice he’d provided, citing attorney–client privilege.
All that said, given Protasiewicz’s margin of victory, she would almost certainly have beaten Dorow as well. Protasiewicz put the issue of abortion at the center of her campaign, blanketing the airwaves with ads touting her support for a right to abortion. Following the Dobbs decision, Wisconsin’s pre-Roe law, which was in effect from around the time the state was founded until 1973 and never repealed by the legislature, has been the subject of ongoing litigation. The law is unpopular in Wisconsin because it bans abortion throughout pregnancy and offers an exception only when the mother’s life is in danger (not in cases of rape).
The state supreme court is now likely not only to strike down the pre-Roe law but to declare a broad state constitutional right to abortion, even though the framers of Wisconsin’s constitution obviously didn’t create such a right: The state was founded in 1848; abortion after “quickening” was banned in 1849; and a general ban on abortion was enacted in 1858.
It remains to be seen just how far the 4–3 progressive majority will push the envelope on other matters. During the campaign, Protasiewicz pre-judged a case involving Wisconsin’s legislative maps, calling the existing maps “rigged.” Republicans currently hold six of the state’s congressional districts, but that’s largely due to Democratic voters’ being geographically concentrated in and around the cities of Milwaukee and Madison.
The supreme-court election is a big win for the Left, but it would be foolish to suggest it means Wisconsin won’t be a competitive state in 2024. Turnout in 2023 was significantly higher than in a typical supreme-court election but significantly lower than in the November 2022 midterm elections or the 2020 presidential election. While there were 1.2 million ballots cast for the supreme-court election in 2019 and 1.55 million in 2020, at least 1.84 million Wisconsinites voted in 2023. (More votes were cast in the 2016 supreme-court race — 1.96 million — but that election coincided with competitive presidential primaries for both parties.) In the November 2022 midterm election, 2.65 million Wisconsinites voted, and the state reelected both Republican U.S. senator Ron Johnson and Democratic governor Tony Evers. In the 2020 presidential race, 3.3 million Wisconsinites voted when Biden carried the state by less than a point.
While there’s still good reason to think Wisconsin will be a battleground state in 2024, prospects for conservatives to take back the court don’t look good in the short term. Progressive justice Ann Walsh Bradley is up for reelection in 2025, but she has been reelected multiple times and is fairly popular. The GOP legislature appears likely to have the votes to impeach and remove a supreme-court justice, but if that happened in 2023 it would simply mean Democratic governor Tony Evers would name a replacement who would serve until a 2024 special election. So progressives are guaranteed to hold their majority for at least the next two years and are in a good position to control the high court for several more after that.