The Hating of Justice Hagedorn

To measure the hate for Wisconsin Supreme Court Justice Brian Hagedorn, you might look at the Facebook post by conservative radio talker Jay Weber, who put up a photo of Hagedorn with this riposte:  

“Who would have thought that of the four conservatives on the court, the one man is the person who would have no sack? What a coward.”

The use of the euphemism for balls was presumably meant to be more high toned. Or was this a subtle compliment to the leading conservative on the court, whose name, after all, is Pat Roggensack?

Yes, that would be absurd, but so are many of the Facebook comments dumping on Hagedorn as an “infantile judge,” “a liar,” a “feckless wonder,” a “wolf in sheep’s clothing,” a “useless POS” and “Another Republican traitor.” 

The rage comes because Hagedorn’s biography shows he is a conservative and a Christian. Indeed, anti-gay statements he made as a young man were an issue in the bitterly-fought election he won over liberal Lisa Neubauer in May 2019. And so right wingers assumed he would automatically roll over for anything Republicans request, whether it was overturning a pandemic restriction issued by the state last spring or the Trump campaign’s push to overturn the presidential election results in Wisconsin. 

But Hagedorn repeatedly promised voters to “uphold the Constitution as written.” 

“I don’t do politics, I do law,” he declared in a candidate debate. 

In short, he would be a strict constructionist, not one of those “liberal activists.” Which is just what conservatives say they want. And just what they got.

Thus Hagedorn voted with the liberal minority in opposing the Supreme Court’s decision to overturn the stay-at-home order by the administration of Gov. Tony Evers.  “The Legislature may have buyer’s remorse for the breadth of discretion it gave” to the state Department of Health Services, Hagedorn wrote. “But those are the laws it drafted; we must read them faithfully whether we like them or not… We are not here to do freewheeling constitutional theory.” (The latter phrase may well have had in mind the uber-activism of radical conservative justice Rebecca Bradley.) 

Since liberal Jill Karofsky joined the court in August, Hagedorn’s decisions became more critical, as he joined three liberals to make a majority that repeatedly refused to take up suits challenging the November election results showing Democrat Joe Biden won the state. 

Hagedorn said the law was clear that Trump must start his lawsuit in lower courts where factual disputes can be worked out. “We do well as a judicial body to abide by time-tested judicial norms, even — and maybe especially — in high profile cases,” Hagedorn wrote. “Following this law is not disregarding our duty, as some of my colleagues suggest. It is following the law.” 

In the case of the suit by the conservative Wisconsin Voters Alliance, Hagedorn called its request that the court throw out nearly 3.3 million votes a “real stunner.”

“The relief being sought by the petitioners is the most dramatic invocation of judicial power I have ever seen,” Hagedorn wrote. “We are invited to invalidate the entire presidential election in Wisconsin by declaring it ‘null’ — yes, the whole thing,” wrote Hagedorn. “This is a dangerous path we are being asked to tread. The loss of public trust in our constitutional order resulting from the exercise of this kind of judicial power would be incalculable.” But “in these hallowed halls,” he noted “the law must rule.” 

Right-wing radio talker Mark Belling has condemned Hagedorn as a John Roberts-like “mistake,” referring to the U.S. Supreme Court Chief Justice who has on rare occasions strayed off the right-wing path.

But Belling’s job, as he will tell you, is entertainment. A more thoughtful comparison might be to the late Wisconsin Supreme Court Justice Patrick Crooks, who was a traditional conservative who believed in judicial restraint and decried the conservative activism of Roggensack and her followers on the court. Hagedorn seems a stickler for the law and certainly doesn’t lack courage in applying it, despite Jay Weber’s slam. 

Hagedorn will play a crucial role in the upcoming battle over redistricting. Republicans hope to extend gerrymandering for another 10 years and are asking the Supreme Court to skip the circuit and appeals courts and take up the issue directly. Given that there will be facts at dispute in this issue, just as there were in the presidential election issue, a long list of advocacy groups are hoping Hagedorn sticks to the law to require the traditional hearings in the lower courts

Republican legislators are also likely to attempt an end run around Gov. Evers, who under the law can veto any redistricting plan he opposes. They have floated the notion of using a “joint resolution.” which doesn’t need a governor’s approval, to approve redistricting. 

Republicans tried this approach back in the 1960s and the Wisconsin Supreme Court in the 1964 Reynolds v. Zimmerman decision, ruled that the legislature could not enact a reapportionment plan by joint resolution, and that the governor must be a part of the process. “It would be unreasonable to hold that the framers of the constitution intended to exclude from the reapportionment process the one institution guaranteed to represent the majority of the voting inhabitants of the state, the governor,” the court declared.

That’s been the ruling precedent now for 56 years, but I wouldn’t put it past Roggensack and her two fellow conservative activists to consider overriding it. And if so, how will Hagedorn rule?