This Is First Liberal Wisconsin Supreme Court In Living Memory

The soon-to-be four member majority on the Wisconsin Supreme Court, Jill Karofsky, Rebecca Dallet, newly elected Janet Protasiewicz and Ann Walsh Bradley. Photo by Henry Redman/Wisconsin Examiner.

On the day after Wisconsin’s nasty and expensive state Supreme Court election, the lead sentence of the Wisconsin State Journal’s front page election story proclaimed: “Milwaukee County Circuit Judge Janet Protasiewicz defeated conservative Dan Kelly for a seat on the Wisconsin Supreme Court Tuesday, giving liberals a court majority for the first time in 15 years, boosting Democrats’ bid to toss out Wisconsin’s near-complete abortion ban and promising to dramatically reshape politics in the battleground state.”

Wisconsin Public Radio, meanwhile, said this in its election-night report: “Democrats have scored a major off-year election victory in Wisconsin, winning the state’s open supreme court seat and flipping control of the court to liberals for the first time in 15 years.”

Both articles contain a contention that is highly questionable if not objectively false.

Protasiewicz did clobber Kelly by an unheard-of-for-Wisconsin 11-point margin. But in asserting that liberals controlled the Wisconsin Supreme Court as recently as 15 years ago, these news outlets were just repeating a shorthand description that became common during the election.

Here’s the headline and subhead of an ABC News story published on the morning of Feb. 19, the day of the primary election that narrowed the field to Kelly and Protasiewicz:

Democrats see a prime chance to take control of the Wisconsin Supreme Court

Democrats, who haven’t had a majority in 15 years, see concerns over abortion access and voting rights as key opportunities to take back control.

And two days before the election, NPR reported, “An election on Tuesday could change the political trajectory of Wisconsin, a perennial swing state, by flipping the ideological balance of the state Supreme Court for the first time in 15 years.”

Since the election, the idea that Wisconsin liberals have just gained a court majority for the first time in 15 years has continued to percolate.

Here’s The Capital Times in the lead sentence of a piece published April 6: “As Wisconsin’s state Supreme Court shifts toward its first liberal majority in 15 years, a liberal law firm plans to challenge the state’s voting maps based on the assertion that partisan gerrymandering violates the Wisconsin Constitution.”

And on April 13, the State Journal republished an editorial in the Kenosha News that said this “marks the first time the court will have a liberal bent in 15 years.”

It’s just not true

In fact, Wisconsin did not have what could be safely described as a liberal majority 15 years ago and quite possibly ever — if you count the many years in which “liberal” and “conservative” were not terms commonly applied to Supreme Court justices and contenders.

From 2004 to 2008, the court had three liberal justices, three conservatives, and one justice, Patrick Crooks, who was a swing vote. Yet while Crooks was appointed to a circuit court judgeship in Brown County by Wisconsin Gov. Martin Schreiber, a Democrat, he ran for election to the Supreme Court in 1995 as a conservative, losing in the general election to Ann Walsh Bradley. His campaign was run by Scott Jensen, a former Republican Speaker of the Wisconsin Assembly who would later end up being convicted of ethics violations.

Crooks was elected to the court the following year, beating Ralph Adam Fine, and was seen as a reliable conservative for much of his tenure, which ended when he died while still in office in 2015, after announcing that he would not seek reelection the following year. He was replaced by conservative Rebecca Bradley, appointed by Wisconsin Gov. Scott Walker and then elected to a full ten-year term in 2016.

In 2004, Crooks joined court liberals in a series of decisions seen as affecting businesses, drawing a hysterical reaction from the state’s big business lobby, which claimed that “America’s personal injury lawyers are racing to Wisconsin” to take advantage of these rulings, which the group said in an ad “send a clear signal to every CEO and top executive in the U.S. that Wisconsin will be a risky state in which to operate.” The ad showed a billboard that proclaimed, “Hello, Trial Lawyers! Good-bye Jobs!”

Yet despite this heated reaction, Crooks was still considered enough of a conservative that WMC sat back and let him get reelected without challenge in 2006.

It’s true that some people called him a liberal but that is far from firmly or clearly established. From his Wikipedia entry: “Crooks generally joined the conservative majority’s opinions, especially in criminal matters, but joined the liberal minority’s dissents on certain constitutional issues and matters of court administration.” In a 2011 Milwaukee Magazine article entitled “Crooks Is Not a Liberal,” journalist Bruce Murphy wrote:

“Yes, he is considered a liberal and is typically described that way in the media, but in fact, he’s a centrist who tends to lean right.” Murphy called the identification of Crooks as a liberal “the media’s error.”

An even bigger deal

Wisconsin Supreme Court watcher Alan Ball, a history professor at Marquette, has backed this up with numbers. In an analysis published a day after the election, he calculated that between 2004 and 2008, when Crooks was a critical swing vote, he “sided with the three liberals in 44% of non-unanimous decisions (Table 1)—considerably more often than the next closest “fourth man,” Justice David Prosser, who joined the three liberals in only 11% of non-unanimous decisions during this period.”

But still, Ball found, Crooks voted with the conservatives slightly more often than with the liberals. “Therefore,” he wrote, “it seems a stretch to describe the supreme court as ‘liberal’ during [this] period.”

So how long has it been that liberals comprised a majority on the Wisconsin Supreme Court?

“The court has never had a clear liberal majority in the decades that I’ve covered it,” Ball told me in an email last fall. “In the 21st century there have been years when it has ‘leaned’ conservative — when there have been three liberals (Abrahamson, AW Bradley, and Butler, for example, or, currently, AW Bradley, Dallet, and Karofsky) — and periods when it has been heavily conservative — most recently, the Gableman and Kelly years.”

“Thus, if a liberal prevails in next spring’s election, the court will be clearly liberal for the first time in living memory,” Ball wrote. “Given these stakes, I imagine that the upcoming race will completely shatter all spending records for judicial elections in Wisconsin.”

He got that right. The estimated $50 million that was sunk into the state’s Supreme Court race on behalf of the two candidates, in nearly equal measure, is five times the previous record for a Wisconsin Supreme Court race and more than three times the record for a judicial race anywhere in the United States.”

When Protasiewicz is sworn in this August, liberals will comprise a Wisconsin Supreme Court majority for the first time in at least four decades.

Just ask liberal Justice Ann Walsh Bradley, the court’s longest-tenured member.

“I’ve been on the court for twenty-eight years, and I’ve never served with what is labeled a liberal majority, one that sees the role of government and democracy the way that I do,” Bradley told journalist Dan Kaufman in an article published April 12 in The New Yorker.

In other words, despite all the advertising and national media attention, the issue of control of the court by liberals is an even bigger deal than what you’ve often been told.

Bill Lueders former editor of The Progressive magazine and current editor-at-large, is a Wisconsin writer who lives in Madison. He also serves as the elected president of the Wisconsin Freedom of Information Council, a statewide group that works to protect public access to government meetings and records.