Janet Protasiewicz was sworn in as a justice of the Wisconsin Supreme Court on August 1, replacing Justice Patience Roggensack, who did not seek reelection after serving two ten-year terms, including a stint as chief justice from 2015 to 2021.
Justice Protasiewicz, previously a judge in Milwaukee County, defeated former Justice Dan Kelly in the spring general election on April 4. During the election, Protasiewicz positioned herself as a judicial liberal, while Kelly ran as a judicial conservative. Kelly and Protasiewicz were the top two finishers in a four-way primary election. The race was hotly contested, marked by issues including abortion and legislative redistricting.
The race attracted a significant amount of national media attention and outside spending. According to a WisPolitics report, the candidates and outside groups spent roughly $56 million over the course of the race, more than triple the previous national record. The previous record for political spending in a state judicial race, $15.2 million, was set in a 2004 supreme court race in Illinois. Prior to 2023, Wisconsin’s most expensive high court race took place in 2020, when Jill Karofsky defeated Kelly in his bid for reelection.
The changeover has shifted the ideological balance of the court to a 4-3 majority of judicial liberals, including Justices Protasiewicz, Karofsky, Ann Walsh Bradley, and Rebecca Dallet. Judicial conservatives previously enjoyed 5-2 and 4-3 majorities on the court for several years. The conservative minority now includes Chief Justice Annette Ziegler and Justices Rebecca Bradley and Brian Hagedorn.
Since joining the court in 2019, Hagedorn has acted as a “swing” vote on some cases, joining with the court’s liberal wing in a series of 4-3 decisions on issues such as redistricting and the public release of businesses’ COVID-19 employee data. According to an article from the University of Wisconsin Law School, Hagedorn sided “more frequently in 2022-23 with the court’s liberal wing, but also [cast] fewer decisive votes than in 2021-22.” Data and analysis of state supreme court decisions on civil cases dating from 2008 through 2022 is available here.
New Majority Asserts Control Over Court Procedures and Staff
The new liberal majority has moved quickly to implement changes to the court and its operations. One day before Protasiewicz’s inauguration, Justice Karofsky notified the director of state courts that he would be let go within a few days. The director of state courts is not an active judge but rather serves as the chief administrative officer of the court system.
Randy Koschnick, previously a judge on the Jefferson County Circuit Court for 18 years, was appointed to the position in 2017. Koschnick’s tenure was marked by efforts to resolve the court reporter shortage and improve the court system’s response to mental health issues. He was awarded by the Wisconsin State Bar in 2020 for his work to keep state courts operating during the COVID-19 pandemic.
On August 2, Justice Walsh Bradley sent a letter signed “on behalf of the court” to Koschnick informing him that his appointment had ended. The court appointed Milwaukee County Judge Audrey Skwierawski as interim director of state courts, effective the following day.
Chief Justice Ziegler responded the same day with a statement calling the action “flawed procedurally, legally, and on its merits. … A vote of four may dictate decisions of our court, but those votes are taken during formally noticed court conferences scheduled by the Chief Justice; no such conference has occurred. … My colleagues’ unprecedented dangerous conduct is the raw exercise of overreaching power.”
Koschnick has since filed complaints with the Wisconsin Judicial Commission against the four liberal justices and Judge Skwierawski, alleging that the judge cannot serve as interim director of state courts because the Wisconsin Constitution forbids sitting judges from simultaneously holding a non-judicial public office. Skwierawski has said that she is taking a leave of absence from the circuit court to serve as interim director.
Koschnick acknowledged to the media that he is “not getting my job back” but said he is “concerned about the court system and the constitution being followed.” The top two Republicans in the legislature, Assembly Speaker Vos and Senate Majority Leader LeMahieu, also sent a letter to the court alleging that Skwierawski’s appointment was unlawful.
On August 4, Justice Dallet released a statement that a “majority of justices on the Wisconsin Supreme Court voted today to advance a number of transparency and accountability measures.” Notably, the court created an administrative committee including the chief justice and two other members, assigning responsibilities to the committee that were previously within the purview of the chief justice. According to the Milwaukee Journal Sentinel, this includes “appointments to the Wisconsin Judicial College, overseeing the state courts director, picking members of state-level judicial committees and the planning and policy advisory committee, and reviewing the court system’s budget, among other matters.”
These procedural changes, detailed here and here, will allow the new majority to immediately exercise control over court administration and operations, including the scheduling of oral arguments, decision conferences, and rule hearings. The Wisconsin Constitution provides that “the chief justice of the supreme court shall be the administrative head of the judicial system and shall exercise this administrative authority pursuant to procedures adopted by the supreme court” (Article VII, Section 4; emphasis added). The court selects its chief justice by majority vote every two years; Ziegler’s current term as chief justice ends in April 2025.
Conservative Justices Ziegler and Bradley have issued written statements and made comments to the media criticizing these maneuvers, which Dallet has characterized as “litigat[ing] internal issues through the media.”
Two Redistricting Lawsuits Filed with Supreme Court
Since Protasiewicz’s inauguration, two lawsuits regarding redistricting have been filed with the Wisconsin Supreme Court. On August 2, a group of liberal legal advocacy groups and law firms, representing several Wisconsin voters, filed a petition for original action asking the supreme court to bypass the typical trial and appellate court process and rule that Wisconsin’s current state legislative maps are unconstitutional.
According to a press release, the lawsuit alleges the following: “The existing legislative maps are an extreme partisan gerrymander that violates various parts of the Wisconsin Constitution. Specifically, the existing maps (1) retaliate against some voters based on their viewpoint and free speech, in violation of Wisconsin’s guarantee of free speech; (2) treats some voters worse than others based on their political views and where they live in violation of Wisconsin’s guarantee of equality; and (3) violate the promise of a free government found in the Wisconsin constitution.”
In a statement, Gov. Tony Evers (D) supported the lawsuit, saying: “Today’s filing is great news for our democracy and for the people of our state whose demands for fair maps and a nonpartisan redistricting process have gone repeatedly ignored by their legislators for years.” Additional media coverage is available here, here, and here.
A second petition from another group of voters advances similar claims, alleging that the maps violate several provisions of the Wisconsin Constitution including equal protection, free speech, and the separation of powers. Additional media coverage is available here.
Both lawsuits ask the court to act on an expedited timeline to rule that the current maps are unlawful and to put new maps in place in time for the 2024 general election. The petitions also ask the court to order all state senate districts to stand for election in 2024. Wisconsin state senators serve four-year terms, with elections staggered every two years based on district number. Assembly districts are elected every two years.
On August 15, the court entered identical orders in each case directing the defendants (the Wisconsin Elections Commission and its commissioners) to file responses by August 22 and inviting non-parties to file proposed non-party briefs by the same date. Justice Rebecca Bradley added a written dissent to the order asserting that “the outcome of this original action has been predetermined. … The court should deny this petition without ordering a response because it relitigates claims this court only recently decided.”
Republican Assembly Speaker Vos has said he believes that Justice Protasiewicz should recuse herself from certain cases, including redistricting lawsuits, based on statements she made earlier this year. During her campaign, Protasiewicz repeatedly referred to the Republican drawn maps as gerrymandered and “rigged.” She did not explicitly promise to rule a particular way on any case, but said in a public forum that “my values and common sense say the maps are wrong.”
In a radio interview, Vos discussed the possibility of impeachment, saying: “The idea that we’re going to immediately start an impeachment process is probably too radical. I want to look and see, does she recuse herself on cases where she is prejudged? That to me is something that is at the oath of office and what she said she was going to do to uphold the Constitution. That, to me, is a serious offense.”
New state legislative and congressional maps, drafted by Republican legislative leaders based on the 2020 U.S. Census, passed the Wisconsin Legislature along party lines in November 2021. Gov. Evers vetoed those maps. Because Gov. Evers and the Legislature failed to agree on new maps, the issue went to court. Following several rulings from the Wisconsin and United States Supreme Courts, the Republican-drawn maps have been in place since April 2022. Comprehensive coverage of that redistricting process is available here.
Other politically charged issues, including abortion and absentee ballot drop boxes, are currently being litigated in lower courts and may reach the Wisconsin Supreme Court on appeal within the next year. According to the Wisconsin State Journal, “national Democrats filed a lawsuit last month trying to undo the court’s ruling disallowing absentee ballot drop boxes so they can be used in the 2024 presidential election. Other lawsuits could be forthcoming that target the state’s voting rules, including a voter ID requirement in place since 2011. A fight also looms over the state’s top elections administrator.” Issues like union rights, school choice, and the governor’s partial veto authority could also appear on the court’s docket in the future.