The Wisconsin Supreme Court is at a turning point. A new Justice, Janet Protasiewicz, took office on August 1, replacing retiring conservative Justice Patience Roggensack. In the short time since then, the Court’s new majority has changed some administrative rules, and two petitions for original action have been filed, including Law Forward’s challenge to the partisan gerrymander. Today Law Forward issues its second annual review of the Wisconsin Supreme Court’s work on democracy issues.
In this year’s report, titled A Court in Transition, we examine several significant court decisions with implications for our democracy, including one that upheld a constitutional amendment even though voters were not fully informed of its scope. For a variety of reasons, which we discuss in the report, this past term was not as dramatically detrimental to our democracy as the 2021-22 term (see last year’s report). But the Court’s decisions still deserve our careful attention—first and foremost because they affect the lives of millions of Wisconsinites. Also, the reasoning behind them has not lost its relevance just because the makeup of the Court has changed. Several significant cases were decided by majorities that include members of what could be the new, less reactionary majority, reminding us that even as the Court changes, in some respects it will stay the same. The opinions we’ve chosen to review from last term include both substantive democracy cases and several with fascinating discussions of the role of the Court that give us some insight into how the new Court may behave.
Our report discusses two ongoing trends at the Court: excessive deference to the gerrymandered Wisconsin State Legislature, and the justices’ disagreements over the role of the Court and tendency to engage in results-oriented judging. Related to this second trend, but new this year in the wake of the contentious Supreme Court election of 2023, we also discuss what exactly it means when people refer to this Court as conservative or liberal. The ideological leaning of a state Supreme Court is oftentimes more nuanced than the obvious party identification of a Governor or Legislative majority. We suggest that while know what a conservative Court looks like—because we had one for years—we do not really know what a more liberal Court would look like. Nor do we know how “liberal” the presumed new majority will be on many important issues, though we do anticipate it will no longer be radically conservative.
We also look ahead to the democracy cases the Court could take up this term, which include challenges to the partisan gerrymander, efforts to restore access to abortion and bodily autonomy, and cases regarding voting rights and election administration in the leadup to the 2024 presidential election.
Every year at the Wisconsin Supreme Court matters. We hope our new report, A Court in Transition, provides helpful insight into the Court’s work last year, and what we might expect in this coming term. This Supreme Court has the potential to reshape our state in ways that will benefit Wisconsinites for generations to come. We look forward to what happens next.
Note: On September 18, after we finalized the text of this report, Planned Parenthood of Wisconsin resumed offering abortion services again at its clinics in Madison and Milwaukee. These services are thus no longer “unavailable” in Wisconsin as indicated in our report, although their availability and accessibility remains limited. The Supreme Court may still end up hearing this issue.