Steven Walters
The State of Politics

Hagedorn Is High Court’s Deciding Justice

Expected to be right-wing stalwart, he takes turns siding with Supreme Court's liberals and conservatives.

By - May 10th, 2021 10:43 am
Brian Hagedorn. Photo courtesy of the Friends of Brian Hagedorn.

Brian Hagedorn. Photo courtesy of the Friends of Brian Hagedorn.

No Wisconsin Supreme Court justice in recent memory — and perhaps ever– has had more influence in their first 22 months than Justice Brian Hagedorn.

Conservatives saw a slam-dunk ally in Hagedorn when he was elected in 2019. He had, after all, been legal counsel for former Republican Gov. Scott Walker, who named Hagedorn a Court of Appeals judge and backed his candidacy for the Supreme Court.

But Hagedorn has been anything but predictable. He has provided the fourth vote — siding at times with both the three conservatives and the three liberals- — so often he could be referred to Deciding Justice Hagedorn.

Last week, Hagedorn joined other justices in upholding a Madison man’s conviction for going armed while intoxicated in his home. He also offered a history lesson going back to 1791, when the right-to-bear-arms Second Amendment became law.

“The right to keep and bear arms has never prevented governments from enacting reasonable regulations to curtail the reckless handling of firearms, such as prohibitions on firing in a crowded area or brandishing a firearm in ways dangerous to others and not in self-defense,” Hagedorn wrote.

“And the unique danger of intoxication when combined with potentially deadly force has long been acknowledged. Moreover, the founding-era historical record suggests, and the reconstruction-era evidence confirms, that one way the government could curtail the reckless handling of firearms was by criminalizing armed intoxication.”

Hagedorn has decided important cases ranging from President Donald Trump’s challenge to how Wisconsin voted for President to whether Democratic Gov. Tony Evers legally responded to the deadly COVID-19 pandemic. Consider four of those decisions.

Question: Should the Court overturn Democrat Joe Biden’s Wisconsin win because of votes by those who improperly claimed to be “confined,” votes cast at Democracy in the Park events and votes in Dane and Milwaukee counties?

Hagedorn: “Our laws allow the challenge flag to be thrown regarding various aspects of election administration. The challenges raised by [Trump’s] Campaign in this case, however, come long after the last play or even the last game; the Campaign is challenging the rulebook adopted before the season began. Election claims of this type must be brought expeditiously. The Campaign waited until after the election to raise selective challenges that could have been raised long before.”

Question: Did Evers legally issue a “safer at home” order requiring the wearing of masks, safe distancing and other public safety measures?

Hagedorn’s May 2019 dissent: “The Legislature, as a constitutional body whose interests lie in enacting — not enforcing — the laws, lacks standing to bring this claim…[The majority allows] the Legislature to argue its own laws are unconstitutional, a legal claim it has no authority to make.

“The Legislature may have buyer’s remorse for the breadth of discretion [given state agencies]. But those are the laws it drafted; we must read them faithfully whether we like them or not.”

Question: Did Evers legally declare successive health emergencies – in March, July and September 2020 – as the number of COVID-19 cases and deaths soared?

Hagedorn: “[T]he governor may not deploy his emergency powers by issuing new states of emergency for the same statutory occurrence…They are unlawful. [T]he declaration now in effect, Executive Order #105, was declared the same day the Legislature revoked the then-existing state of emergency…[T]he state of emergency proclaimed in [that order] exceeded the Governor’s powers and is therefore unlawful.”

Question: Did the state’s top health officer legally issue a public-safety order limiting public gatherings?

Hagedorn: The official “issued another order doing exactly what this court said she may not do: limit public gatherings by statewide order without promulgating a rule. [She] hopes to achieve a different outcome this time by seizing on some of the vulnerabilities in [the May 2019] decision….”

“Creative efforts to engineer a different result from an indistinguishable set of facts would, in my view, be a departure from basic principles of judicial decision-making. The reach and nature of stare decisis – a Latin phrase that means ‘to stand by things decided’ – is the subject of much debate. But if stare decisis is to have any import at all in our legal system, it surely must apply when a court has told a specific party that certain conduct is unlawful, and that party does the very same thing again under the same circumstances. That is what we have here.”

The next chance to elect a justice whose importance could rival Hagedorn’s is 2023, when the term of Justice Pat Roggensack, who is 80, ends.

Steven Walters has covered the Capitol since 1988. Contact him at

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