Conflicts on Wisconsin’s newly liberal controlled state Supreme Court spilled out publicly as the court majority flipped this week, setting the stage for deep divisions in the battleground state on major cases that could determine the legality of abortions and voting rules, as well as legislative boundary lines.
Conservatives controlled the court for 15 years until Tuesday. Liberals will have the majority for at least the next two years.
Under conservative control, the court upheld Republican-drawn maps in 2011 that helped the GOP increase its majorities, affirmed a state law that effectively ended collective bargaining for most public workers, and declared absentee ballot drop boxes illegal.
Deep partisan divisions on the court aren't new. Tensions were so high in 2011 as the court considered a case about collective bargaining rights that a liberal justice accused one of her conservative colleagues of trying to choke her.
On Wednesday, conservative Chief Justice Annette Ziegler accused liberal justices of a “raw exercise of overreaching power” when they fired the state court director Randy Koschnick. He was a judge for 18 years before he served six years overseeing Wisconsin's court system. Koschnick ran for the state Supreme Court as a conservative in 2009 and lost.
Republican legislative leaders sent the court a letter Friday saying the appointment of a Milwaukee County judge to serve as interim court director was unconstitutional. They argue that the Wisconsin Constitution prohibits Judge Audrey Skwierawski from holding any office besides judge during her term. The lawmakers demanded that her appointment be rescinded.
But if a lawsuit is brought over that, its final stop would be the state Supreme Court controlled by the very justices who fired Koschnick.
That fight, and others, expected to come before the court include:
A coalition of voting rights groups and a pair of law firms, including one backed by Democrats, asked the court this week to throw out Republican-drawn legislative maps, arguing they are an unconstitutional gerrymander. The court must first agree to take the case, which seems all but certain given the 4-3 liberal majority, and then rule on whether the current maps are constitutional. If it tosses them, the court will then have to determine a remedy, which could lead to the enactment of more Democratic-friendly maps before the 2024 election. Republicans have held a majority in the Legislature since 2011, the year they drew the maps that are in place now and were largely unchanged after the last round of redistricting.
Wisconsin clinics stopped performing abortions last year after the U.S. Supreme Court overturned Roe v. Wade, citing an 1849 state law banning abortion. A lawsuit seeking to undo the state ban is currently in county circuit court and could get before the state Supreme Court later this year.
2024 VOTING RULES
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. The rules of elections are particularly critical in Wisconsin, a state where four of the past six presidential elections have been decided by less than a percentage point. The state Supreme Court came within one vote of overturning President Joe Biden's win in 2020, with a conservative swing justice siding with the then-minority liberal justices to reject Donald Trump's arguments.
And anger among Republicans over longtime Chief Justice Shirley Abrahamson led to the Legislature putting a constitutional amendment on the ballot in 2015 that gives justices on the court the ability to choose who serves as chief instead of going to the most tenured member. It passed, and the court’s conservative majority immediately ousted Abrahamson. She sued in federal court to retain her title, but lost. The constitution requires the chief justice to be elected to a two-year term. The current chief justice, Ziegler, was first elected in 2021 and then again for another two-year term that began in May. The amendment does not spell out a process for removing a chief justice, but Ziegler could resign the post and remain on the court. The chief justice serves as administrative head of the judicial system, but as the Koschnick firing shows, a majority of justices can wield significant power.
The fight over union rights defined Republican Scott Walker's time as governor, fueling massive protests in 2011, a failed attempt to recall him from office in 2012 and his subsequent run for president in 2015. Democrats and unions sued numerous times to regain rights lost during Walker's eight years in office. More challenges are expected.
Wisconsin governors have wide veto power, which has drawn bipartisan complaints and constitutional amendments to reduce the breadth of what they can do. But when Democratic Gov. Tony Evers in June used his veto to enact a school funding increase for 400 years, Republicans promised to sue.
Democrats, including the current governor, have long opposed Wisconsin's school choice program, which allows students to attend private schools using taxpayer-funded vouchers. Liberals have been talking about bringing lawsuits to scale back the program, which was the nation's first when enacted in Milwaukee in 1990. It has since grown statewide.