State Supreme Court’s Conservatives Go Public With Their Unhappiness About No Longer Being in Charge

The conservative justices and GOP legislators—who have taken actions aimed at trying to undermine election results in 2018 and 2020—are indicating a willingness to try to nullify the 2023 election that ended conservative control of the court.

Recently-published emails are allowing the public to see the intense disagreements the three remaining conservative justices on the Wisconsin Supreme Court are having with the four liberal justices, who now control the court’s agenda and work routines. Not all of the content in the emails is new, however, since two of the conservatives have already used press leaks, tweets, and interviews to complain about what it’s like to be in the minority after 15 years of control. 

The conservative public relations campaign also has a new group of allies: Republican legislators who are talking about impeaching  liberal Justice Janet Protasiewicz less than a month after she took office. 

The investigative news site Wisconsin Watch used public records requests to obtain the correspondence among the justices as the court transitioned to liberal control with the Aug. 1 swearing-in of Protasiewicz,who resoundingly defeated her conservative opponent in April. 

Protasiewicz joined Justices Ann Walsh Bradley, Jill Karofsky, and Rebecca Dallet in determining the new path of the court. Their initial efforts at reforming the court’s processes faced immediate obstruction by conservative Justices Rebecca Bradley, Brian Hagedorn, and Chief Justice Annette Ziegler.

The emails show how conservatives ratcheted up tensions on the court from the beginning, with accusations of political purges and illegitimate abuses of power—even though everything the liberal justices have  done in their first three weeks has taken place using the same majority vote that conservatives enjoyed for years. The liberal justices replaced a conservative former Supreme Court candidate who had been state courts director; they opened up more of their internal day-to-day operations to public view, and they reversed a conservative policy that had gutted the standards for justices hearing and deciding on cases involving donors to their political campaigns.

“The liberal justices, now that they’re in the majority, are simply doing what they’ve been promising to do when they ran as candidates,” said Ed Fallone, a Marquette University law professor and former progressive Supreme Court candidate. He noted that the liberals “all ran as candidates pledging to reform the rules that govern when justices have to step down and recuse themselves—not participate in a case—particularly when you have a major campaign donor who’s a party to the case.”

“The conservatives, over a decade ago, changed the rules at the request of special interest groups, to permit justices to sit on cases that are brought by or involve major campaign donors,” Fallone said. “We need to have common sense rules that require justices to step down in cases that involve major campaign donors. And so now, finally, the liberals are in a majority and they’re doing what they promised.

Why is anyone surprised? They shouldn’t be.”

Power Plays Cut Both Ways

Shortly after the 2018 elections, when Tony Evers unseated then-Gov. Scott Walker and Josh Kaul unseated then-Attorney General Brad Schimel, Republicans running Legislature used the  lame-duck session to remove some powers and duties from the offices Evers and Kaul would soon occupy. While seen as a dirty trick by many, the move was upheld by the court’s conservative justices—including Ziegler. 

“The Wisconsin Constitution itself affords the legislature absolute discretion to determine the rules of its own proceedings,” wrote conservative Rebecca Bradley. (She and liberal justice Ann Walsh Bradley are not related.)

Fast-forward a few years, and the conservatives now hold  a new viewpoint. When the new liberal majority decided by majority vote to create a new administrative committee that would take on some of the powers and duties that Ziegler had held, the conservatives revolted.

“What you have done is contrary to the constitution, our [procedures and rules],” Ziegler wrote on Aug. 4. “The changes you have made are not legitimate or enforceable.”

Ziegler demanded a copy of the document outlining those changes and immediately made it public, according to the Wisconsin Watch story—necessitating a public response from Dallet.

“On behalf of a majority of justices on the Wisconsin Supreme Court, I want to express my disappointment that the Chief Justice, rather than collegially participate in a scheduled meeting of the court today, is litigating issues normally discussed by Justices either in conference or through email, through media releases,” Dallet said.

Still Trying to Un-do 2020—and Now 2023

This week, Republican legislators expressed a willingness to impeach Protasiewicz  if she does not recuse herself from new legal challenges to Wisconsin’s legislative maps that are likely to wind up before the state Supreme Court. They point to her statements about the current legislative maps as being “rigged,” even though that is a national consensus among experts in gerrymandering, which is what happens when one party redraws district maps to give itself a majority of legislative seats vastly out of proportion to its actual statewide level of support. Taxpayers will be on the hook for about $2 million for private attorneys hired by Republicans to defend their maps.

The impeachment threat against Protasiewicz could be seen as an attempt to nullify the 2023 election, even as some of those same lawmakers met this week to once again rekindle their efforts to nullify or cast public doubts on the results of the 2020 presidential election in Wisconsin.

The Senate Elections Committee revisited long-debunked 2020 claims as part of an extralegal attempt to fire Meagan Wolfe, the administrator of the Wisconsin Elections Commission. Widely regarded nationwide for her experience and fairness, Wolfe is nevertheless being targeted by supporters of former President Donald Trump, who faces dozens of federal and state criminal charges for his attempts to overturn the results of his loss to President Joe Biden.

Any effort to fire Wolfe will likely result in a new court fight, which would join several other lawsuits that together illustrate the ongoing battles waged by conservatives seeking to stay in power. 

Whether legislators attempt to impeach Protasiewicz or not, she will almost certainly remain a target of conservative ire—even in the workplace. Ziegler contacted the media again this week to share complaints about new court procedures. Dallet again offered up a progressive response.

“I am incredibly disappointed that you have chosen to play games in the media rather than communicate with members of the court privately through our procedures, or with the Director of State Courts throughout the month (despite numerous requests to do so),” Dallet wrote. “Your frantic emails and public statements notwithstanding, your power has been limited, in accordance with the constitution, which allows a majority to rule and to develop procedures you must respect.”