The concept of impartial judges was cute for a while, but now it hurts us.
Photo by Richard Hurd on Flickr.
Every time Wisconsin elects a state supreme court justice, we for some reason feel obligated to indulge in a tiresome fiction. All the candidates are on a ballot. They take campaign contributions. They run TV ads. Political interest groups ostensibly separate from the campaigns spend money on ads too. The candidates hire professional politicos to work on their campaign staff. At times the candidates have themselves made partisan political donations. Some candidates are active members of explicitly value-driven groups like the Federalist Society. Support for the candidates breaks down along obvious political lines. But despite the fact that these races are as political and partisan as they would be for any legislative or elected executive-branch position in state government, the candidates are “officially” non-partisan, and each invariably spends most of the campaign promising to be a fair, non-ideological jurist and claiming that the other candidate is the real judicial activist.
This framing creates an absurd situation in which each state supreme court candidate tries to strike a balance between clearly telegraphing their political tendencies and demonstrating how assiduously apolitical they are, pulling the mask of neutrality off and on. That leaves voters and the media to sift through old writings and rulings for insight into their legal reasoning, as if it’s not more or less obvious how they would rule on most issues. It’s exhausting for everyone. It’s insulting. In this Tuesday’s primary, for instance, every informed voter in Wisconsin knows that we’re narrowing down the field that consists of right-wing incumbent Daniel Kelly and more or less liberal challengers Jill Karofsky and Ed Fallone. The two candidates who come out ahead in the primary will go on to compete in the April 7 election, which also coincides with Wisconsin’s 2020 presidential primary.
Americans often lament these days that norms are crumbling. But this particular norm is just plain deceptive and we should gleefully dispose of it. Voters pick the candidate we hope will make the decisions we’d like them to make. Yes, many of us care about state supreme court justices making informed, legally sound decisions that maintain a proper balance of power in state government. There’s nothing dissonant about this: We either believe that informed, legally sound decisions will mostly be the ones we want, or we just want what we want, process be damned.
We also know that the Wisconsin Supreme Court has made a concerted effort over the past decade to make itself more corrupt and susceptible to outside influence. It’s hard to maintain the illusion that the Wisconsin Supreme Court is an institution built on the arcane, abstracted majesty of jurisprudence. Even if you did believe that, it would be hard to ignore the real human and political consequences of the court’s rulings, including its decision to uphold the lame-duck laws Republicans rammed through in 2018 to kneecap incoming Governor Tony Evers. Republicans have also abandoned any pretense of caring about judicial independence on the federal level: Donald Trump is filling the federal bench with unqualified extremists, and his administration ignores the advice of the American Bar Association in nominating new judges. And then there’s William Barr.
The point is, if you’re worried about the judiciary not being independent anymore, it’s already too late, and will be too late for at least a generation. I get that there are lawyers and judges out there who want to be principled and don’t want to be unduly influenced by the political process. I get that historic U.S. Supreme Court decisions often seem to have an inspiring sense of justice and reasoning that rises above the political fray, and that it’s important to be able to understand the scope, logic, and significance of a given ruling. It’s comforting to think of jurisprudence as its own deep, intricate, and insular set of traditions. But maybe it’s just a slightly esoteric dialect of the same language that power always speaks.
As much as Americans claim to want “unbiased” judges, I think we also view claims of neutrality with suspicion. We should. Everything’s political, Wisconsin Supreme Court elections are deeply political, and usually someone telling you not to “politicize” something is really just telling you to shut up. Voters and candidates should politicize these races as much as possible. I’m not convinced there’s much of a downside to just openly treating justices like the political creatures they are. A 2019 cover story in Isthmus cast doubt on whether voters really care all that much about the norm of politically independent judges, and pointed out an asymmetry in how it plays out: Liberal judges sometimes push the impartiality thing so far that they fail to get voters all that excited.
Conservative justices, while playing much the same game, make appeals to religious values and to the tangle of motivated reasoning and cultural signaling that is Constitutional originalism, knowing that these appeals will motivate right-wing voters. For instance, Justice Brian Hagedorn, in last year’s successful race against Lisa Neubauer, claimed that he was being persecuted for his Christian faith after critics pointed out that he is a bigot. There’s no real debate to be had as to whether Hagedorn is a bigot: He founded a school that blatantly discriminated against gay and trans people and wrote blog posts equating homosexuality with bestiality. But the appeal to Christian victimhood is very effective in the no-longer-even-thinly-veiled white identity politics that dominate the Republican Party.
I’m particularly anxious about making the most of a state supreme court election that coincides with an open presidential primary. The last time it happened, the results were disappointing. In April 2016, Bernie Sanders won the state’s Democratic primary. On the same day, conservative judge Rebecca Bradley (who has her own record of anti-gay bigotry) beat out the more liberal JoAnne Kloppenburg for a 10-year term on the court. State elections records show that Wisconsinites cast 929,377 votes for Kloppenburg, while casting a total of 1,007,600 votes for one Democratic presidential contender or another. (Granted, Republican voters had a similar margin of under-voting for Bradley.)
This indicates to me that Democratic primary candidates weren’t doing enough to stress the importance of down-ballot races, and/or that voters excited about their presidential candidate of choice weren’t paying enough attention. It was disappointing to think that maybe some of my fellow primary voters weren’t thinking about the long-term consequences of letting conservatives maintain their majority on the court, especially after years of brutal disappointments in state politics already. One of the reasons we’re in the situation we’re in is that Republicans have long understood the importance of state politics and have aggressively built up power at that level, with far-reaching consequences that span from abortion restrictions to gerrymandering. If all of us who oppose Republicans don’t take state politics just as seriously, what can we expect but more of the same?
That said, we can’t lay all the blame on the people who voted in the 2016 Democratic primary that day. Bradley won the supreme court race by a margin of 90,715 votes. Had every single Democratic primary voter also voted for Kloppenburg, that alone still wouldn’t have defeated Bradley. Republicans voted in their presidential primary in slightly higher numbers, presumably fired up by a field truly stacked with villainous maniacs. That said, Rebecca Dallet’s victory in 2018 shows us that Democrats can win court races (seriously, let’s just call them what they are: races between Democrats and Republicans).
Even if Kelly loses in April, conservatives will, barring an unexpected retirement, still have a majority on the court until at least 2023. Imagine a conservative majority of any size getting involved if Trump loses Wisconsin and decides to contest the results (a likely scenario, given his penchant for voter-fraud conspiracy theories). How does that make you feel? Punish them in advance and take a step to reduce their power now.