A new era of liberal judicial activism in Wisconsin
Hudson Crozier
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Janet Protasiewicz was sworn in yesterday as the newest justice on the Wisconsin Supreme Court, flipping it to a liberal majority for the first time in 15 years. Her past statements indicate she will be just the unaccountable superlegislator the Left needs.
“I have been very, very clear that my values are that women have the right to choose,” Protasiewicz said of abortion before the election she won last year.
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She disagreed with the U.S. Supreme Court’s acknowledgment last year that there is no right to abortion in the Constitution. “Quite frankly, I was surprised when the U.S. Supreme Court decided to take away a fundamental right that so many people in our country had for such a long time,” she explained.
By “a long time,” she meant the 49 years that justices pretended the right to abortion existed in the 14th Amendment, not the entire century that the amendment existed before they invented that right. Nevertheless, liberals elected Protasiewicz so that she could finagle “abortion rights” and other liberal priorities out of a state constitution that does not mention them. A challenge to Wisconsin’s 1849 abortion ban is already making its way through the courts.
The liberal organization Law Forward shrewdly waited until today to file a crucial lawsuit it wants the court to consider. It alleges that GOP-drawn electoral maps are unconstitutional because they gerrymander too strongly in favor of conservatives. Its legal explanation seems mostly ideological.
“Generally, the idea is that the [Wisconsin] Constitution guarantees a free and fair government, and the way that our gerrymandered maps have consolidated power within a legislative body that is not accountable to the voters is not a free and fair government,” the head of Law Forward said in April. Attorneys are counting on the court to interpret the law based on what they think it should say to be sufficiently “fair.” Protasiewicz, who has said that the maps are “rigged,” has given them hope that a new liberal majority will do so. And just like that, brand new interpretations of the state constitution will be portrayed as what the text has always said.
There are compelling arguments for banning partisan gerrymandering, which many see as anti-democratic. But to fight it, Wisconsin residents and activists have embraced the democratic problems that come with judicial activism. They welcome the idea of justices falsely labeling an abortion law unconstitutional to undermine elected representatives with a ruling that could only be overturned by another ruling much later.
One could combat gerrymandering the right way by getting future legislators to act and making it a big deal in legislative elections. But that would take more time and effort than the quick but damaging solution — legislation by judges — that the Left is pursuing.
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Hudson Crozier is a summer 2023 Washington Examiner fellow.