How a Supreme Court race in 2023 could play a pivotal role in 2024 elections
Sarah Westwood
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A state Supreme Court race in Wisconsin could become the most important election of 2023, with voters’ decision dictating whether the state’s highest court leans liberal or conservative ahead of several key rulings.
From abortion rights to redistricting, the Wisconsin Supreme Court is set to consider deeply divisive issues once its newest member joins the bench.
When current conservative-leaning Justice Patience Roggensack opted not to seek reelection this year, the remaining court’s ideological makeup split down the middle at 3-3.
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That means whoever wins the April contest will cement a 4-3 majority for either the liberal or conservative bloc before the swing state weighs significant issues ahead of an even more significant presidential cycle.
“The stakes are huge,” Barry Burden, a political science professor at the University of Wisconsin-Madison, told the Washington Examiner. “The court has been deciding all of the important issues in Wisconsin over the last several years.”
Burden said the state’s high court has played such an outsize role in policymaking because Wisconsin has remained under divided government for years, with a Democratic governor and a Republican-controlled legislature.
“There’s been very little actual lawmaking over the last four years. Most of the major decisions have been made by the courts,” Burden said.
Four candidates are vying to fill Roggensack’s seat.
While the race is technically nonpartisan, two of the candidates lean liberal and two lean conservative.
On the right, former state Supreme Court Justice Daniel Kelly and Waukesha County Judge Jennifer Dorow hope to keep the court in conservative hands.
On the left, Dane County Judge Everett Mitchell and Milwaukee County Judge Janet Protasiewicz hope to land a spot on the bench to serve as a decisive vote against an abortion ban, a Republican-backed congressional map, and a host of other issues likely to come before the court.
Kelly has the backing of powerful Republican donor Richard Uihlein through a group he funds, Fair Courts America, which has pledged to spend millions of dollars to “help educate voters” about his record.
Other groups plan to wade into the race once the contest moves into the general election after the February primary. At that time, the top two vote-getters will begin a final sprint to April regardless of their ideological leanings.
State Supreme Court judges have to win elections to serve in 38 states, according to the Brennan Center for Justice. Some of the races are partisan, while some, like Wisconsin’s, are not.
The 2020 election in Wisconsin broke a record for spending; groups and campaigns spent nearly $10 million securing a seat on the state’s high court that year.
The cost of this year’s race could well exceed that figure given the stakes of the outcome.
“I don’t think we’ve had a contest like this, where there have been four candidates, two on either side of the spectrum,” Burden said, noting that two candidates of the same ideological bent are unlikely to advance to the general election in April.
“It would require a pretty significant imbalance in turnout between voters on the Left and voters on the Right,” he said.
A legal battle over Wisconsin’s abortion law has drawn even more attention to who will fill the state Supreme Court seat.
After the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, an abortion ban enacted in 1849 immediately went into effect. The ban, known as a trigger law, remained on the books while the Roe v. Wade legal framework dictated the country’s abortion policy, and it stayed dormant until the Supreme Court repealed that framework.
Abortions initially stopped last summer in the immediate aftermath of Dobbs.
Wisconsin Attorney General Josh Kaul, a Democrat, filed a lawsuit to stop the 1849 law from ending abortion access in the state. He argued that newer laws passed to accommodate the Roe protections should carry the force of law instead of the older ban.
His lawsuit may not reach the state Supreme Court before the April election of a new justice, which would create an enormous incentive for left-leaning groups to invest in the race if one of the ideologically liberal candidates advances to the general election after February.
Groups like Planned Parenthood have reportedly pledged to invest in the race.
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The state’s legislative map will also likely feature in the two-month general election.
Wisconsin Supreme Court justices ruled 4-3 in April in favor of a map favored by Republicans, helping to cement the GOP’s majority at the state legislative level for the next 10 years.
Efforts to challenge the map in court before the 2022 midterm election fell short, but groups could bring a new redistricting suit if they believe their chances would improve under a friendlier state Supreme Court makeup.