From gay rights to abortion access and property rights. Where 2023 Wisconsin Supreme Court candidates stand on big rulings.
The primary for Wisconsin Supreme Court is coming down to a finish, with four candidates fighting to be the top two vote-getters Tuesday. The race has been punctuated by millions of dollars in outside spending and infighting between the two conservative candidates.
The conservatives, Waukesha County Judge Jennifer Dorow and former Supreme Court Judge Dan Kelly, and liberal judges Milwaukee County's Janet Protasiewicz and Dane County's Everett Mitchell will be on the ballot Tuesday, vying for conservative Justice Patience Roggensack's seat.
The race is nonpartisan in name only. And it's being watched nationally because, depending on the outcome, the ideological makeup of the court could change. The court is expected to decide a number of high-profile issues, including abortion and state election maps.
Conservatives now hold a 4-3 majority.
Here's what the candidates say about previous decisions made by the U.S. Supreme Court and the Wisconsin Supreme Court, and how all the outside money they've been receiving could affect their future rulings.
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Jennifer Dorow cited Lawrence v. Texas that legalized same-sex sexual activity as Supreme Court's worst ruling
In judicial applications to former Gov. Scott Walker, Dorow and Kelly were asked to name one of the worst U.S. or Wisconsin Supreme Court opinions in the last 30 years.
In 2011, Dorow cited the landmark 2003 Lawrence v. Texas case in which the Supreme Court invalidated sodomy law across the United States, making same-sex sexual activity legal in every state and U.S. territory.
When asked during a candidate forum hosted by WisPolitics in January if she still agreed that was the worst case in last 30 years, Dorow avoided answering.
"Sometimes I don't personally agree with the law I'm applying, sometimes the words or the statutes themselves are stupid, but stupid doesn't mean they are unconstitutional," she said at the forum. "My job is to apply the words."
When contacted by the Milwaukee Journal Sentinel for follow up, the Dorow campaign did not respond to a request for comment.
Dan Kelly criticized Supreme Court ruling on eminent domain
On his application Kelly cited the 2005 U.S. Supreme Court Case of Kelo v. City of New London, Connecticut, in which the court held that the government can take private property from an individual in order to turn it over to a private developer if the action will result in “economic development” for the region.
Locally, this reasoning was used in Mount Pleasant when the village purchased and demolished hundreds of homes for the Foxconn development.
Kelly said in January he still believes it was one of the Supreme Court's worst rulings.
"The very first article of the Constitution says we are endowed with the rights of life, liberty and the pursuit of happiness," Kelly said. "The problem in that case is this is not for public use, it's for private use, and this is a significant interference with our liberties that the Constitution protects. And it still stands up well as one of the worst opinions."
Janet Protasiewicz and Everett Mitchell both cite overturning of Roe v. Wade as court's worst Supreme Court decision
Protasiewicz and Mitchell did not fill out similar forms, but were asked the same question. Both cited the U.S. Supreme Court's Dobbs decision in June 2022 that abortion is not a constitutional right as the worst decision in the last 30 years.
Mitchell said the ruling was the first time in history the court took away a right and since the ruling the country has been left in a "chaotic place."
Protasiewicz, who has run campaign ads about her own pro-choice beliefs, said the court took away women's rights to choose.
"I can't tell you where I'll end up on a case, but my value is women should be able to make their reproductive life decisions themselves," Protasiewicz said.
Trump v. Biden ruling at Wisconsin Supreme Court
For weeks, Kelly has said he can't commit to endorsing Dorow if she advances in the primary because he's not sure she's conservative enough. Dorow has said she would endorse Kelly.
One of Kelly's issues is Justice Brian Hagedorn, who was elected to the state Supreme Court in April 2019 as a conservative but has sided with the liberal minority on some key cases, including upholding President Joe Biden's win in Wisconsin and rejecting Donald Trump's lawsuit.
Kelly, who lost his seat on the Supreme Court in April 2020, suggested to the Washington Post he supported the rulings on the last presidential election as well, saying he “did not see an argument that would be capable of disenfranchising all of the people who cast votes in that election.”
When asked about the Trump case, the Dorow campaign did not respond to request for comment.
In a statement to the Journal Sentinel, Mitchell said Biden won Wisconsin and the presidency, and it's time to move on from 2020.
"The case was decided properly. Justice Hagedorn stood against partisan interest and sided with democracy," Mitchell said.
Protasiewicz's campaign spokesman Sam Roecker said she believes the Wisconsin Supreme Court did the right thing by upholding the election results, but the slim margin of this decision shows how critical it is to elect a new justice who believes in upholding our laws and protecting democracy.
"Dan Kelly is a right-wing extremist who still believes the Supreme Court should have ignored the will of the people by overturning Wisconsin's 2020 election results," Roecker said.
Does outside money influence decisions?
Big out-of-state money has already flowed into the judicial race. More than $7.5 million has been spent and some are estimating $20 million could come in for both conservatives and liberals before the general election, far eclipsing the record $10 million spent in the entire 2020 contest for the state's highest court.
Some of the biggest donors include Fair Courts America, a super PAC underwritten by billionaire and GOP mega-donor Richard Uihlein, that has so far spent nearly $2.4 million to back Kelly, as of Friday. The liberal group A Better Wisconsin Together was spending about $2 million on ads attacking Dorow, as of Friday.
This type of spending has raised questions about how justices can remain impartial.
In 2017, conservatives on the Wisconsin Supreme Court, including Kelly, voted against a proposal by 54 retired jurists that would have overhauled recusal rules, forcing judges and justices to step aside from cases involving those who spent money on their elections.
Conservatives said the proposal would interfere with the free speech rights of those who run ads and engage in other campaign-like activity.
Dorow and Mitchell also said statutes regarding recusal are not necessary.
Protasiewicz said there is an "absolute need" for a recusal rule and she wants the public to decide the point at which judges should recuse themselves.
"We're talking about outside money that's going to come into this campaign that is millions and millions of dollars — millions," Protasiewicz said. "I'm not going to sit here and tell you what the number is when we should step aside, but I absolutely think there needs to be a hearing and the public needs to weigh in."
Corrinne Hess can be reached at chess@gannett.com or on Twitter @CorriHess.
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This article originally appeared on Milwaukee Journal Sentinel: Wisconsin Supreme Court election 2023: Candidates list worst rulings
