A Lesson From Wisconsin

Judge for yourself

Wisconsin is a state known for its cheese, but now it may also be known for its tea leaves.

You can make a strong case that the biggest political news from yesterday was not the courtroom appearance of a former president in New York, but rather a state supreme court election in the Badger State. 

These are the kinds of races that usually elicit more yawns than a kindergarten class after recess. But not this year. Not in Wisconsin. Not in our current political environment. 

Officially, the race for an open seat on the Wisconsin Supreme Court was a nonpartisan affair. Officially. But there was no secret about where the political affiliations of the two candidates lay. Janet Protasiewicz telegraphed herself as a “progressive,” and her opponent Daniel Kelly is a “conservative.” And with an existing “conservative” justice retiring, the future balance of a court that had been evenly split hinged upon yesterday’s outcome.

This is especially important when you consider that Wisconsin may be the most embattled of battleground states. With the exception of President Obama’s victories in 2008 and 2012, it has been decided by around a point or less in every presidential election from 2000 onward.

In 2022, the Democratic candidate for Senate barely lost to the Republican incumbent. It was a race that many Democrats now believe they let slip away. 

Two places you won’t see evidence of Wisconsin’s battleground status, however, are its state legislature and its congressional delegation. They are both overwhelmingly Republican. And that’s telling. Republicans made the state among the most gerrymandered in the nation. It’s so bad that you might be hard-pressed to call Wisconsin a fully functional democracy.

This was the backdrop for yesterday’s Wisconsin election. And so was the U.S. Supreme Court’s recent dismantling of women’s reproductive rights. Abortion is currently illegal in Wisconsin due to a 174-year-old ban that took effect once Roe v. Wade was overturned. A liberal majority on the state supreme court is likely to change that.  

And it could overturn the gerrymandering and revisit a host of other policies Republican politicians and judges have pushed through.  

With all that at stake, it’s understandable that both sides poured money into the race — an eye-popping $42 million. For a single judgeship. Not surprisingly that total smashed all previous records of spending in court races. 

In the end, the headlines weren’t only that Protasiewicz won, but the margin of her victory — 10 points — which in Wisconsin counts as a landslide. 

There are a lot of lessons one can take from the results. First, the anger that many Americans feel about the U.S. Supreme Court’s abortion ruling has not dissipated. It was a motivating factor in the 2022 elections, in which Democrats overperformed. And it remains so in 2023. Should we expect that to extend into 2024?

There is also a sense that the Midwest gains Trump made in 2016 may be diminishing for the GOP.  At least somewhat. The Republicans lost big in Michigan and Pennsylvania in 2022. And now here again in Wisconsin. 

Against this backdrop, it is worth reminding ourselves that we are generally in an era of a politicized judiciary. But to be fair, we’ve been there for a while. In a different world, one could hope that the judiciary would not be so politicized. But to start worrying about that only now in the wake of this race is to conveniently forget what we’ve seen over the last decades. 

While both political parties have long histories of appointing judges to the bench who share their general world views, there has seldom, if ever, been anything like what the Republicans have attempted at both the state and federal levels over roughly the last 40 years. 

If you want a perfect definition of “politicians in robes,” you need go no further than the current U.S. Supreme Court, which is handing down decision after decision that hews to Republican orthodoxy, but which they could never achieve legislatively — on abortion, guns, the environment, voting rights, workers’ rights, and on and on. 

Nothing has defined the tenure of the Republicans’ Senate leader, Mitch McConnell, more than filling the bench with true believers. And blocking Democrats from filling the open seat left by the death of Antonin Scalia. 

Finally, if we are really worried about politicized judges and elections, then we need to consider the overall health of our democracy. If Wisconsin weren't so gerrymandered, if the state legislature weren't so out of touch with so many of the voters, if it hadn't banned abortion and subverted representative government, then we probably wouldn’t have had a state supreme court race making such headlines. 

But this is where we are. And if you try to suppress the will of the people, eventually they will find a way to try to reset the balance. What just happened in Wisconsin is an encouraging example.

Note: We’re deeply thankful for the Steady community. If you aren’t already a member, please consider subscribing. Both free and paid options are available.