Abortion Laws, Ideological Makeup of Wisconsin’s Supreme Court to Be Decided in Upcoming Race

A statue of the goddess of Justice balancing the scales, at Rennes' courthouse on Sept. 19, 2017.(Loic Venance/AFP/Getty Images)

A race in Wisconsin for a seat on the state’s Supreme Court will decide the court’s ideological balance and the fate of abortion access in the state.

The technically nonpartisan primary on Feb. 21 winnowed down a field of four contenders to two, a conservative-leaning judge and a liberal-leaning one, who will meet at the general election on April 4.

Currently, the state’s Supreme Court has a 4–3 conservative-leaning majority. But the upcoming retirement of conservative Justice Patience Roggensack, who has held her seat for two 10-year terms, will either result in keeping that majority in place or tilting the balance to a liberal majority.

Wisconsin Democratic Party Chair Ben Wickler explained to Vanity Fair what he sees as the high stakes involved.

He said that the current conservative court “has essentially acted as a third branch of the Republican-dominated state Legislature” by permitting the drawing of the “most gerrymandered maps of any state in the country” in order to favor Republicans and limit the powers of Democratic Gov. Tony Evers.

Wickler also said that if the conservative majority remained, the court could decide to uphold an 1849 abortion ban, which reverted into effect with the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision last year.

If the liberal candidate wins, it would be the first time in 14 years since 2008 that liberals would hold a majority on the court.

Central to the race is the issue of abortion, which revolves around the 19th-century-era state law that bans abortion in all cases unless the mother’s life is at risk.

Judge Janet Protasiewicz

The liberal victor of the primary election is Milwaukee County Judge Janet Protasiewicz, whose campaign fundraising “dwarfed” her three primary opponents, according to the Milwaukee Journal Sentinel, seeing Protasiewicz take the lion’s share of the votes at 46 percent.

According to her campaign website, Protasiewicz claims she is running “to restore integrity to the Wisconsin Supreme Court, and get politics out of the courtroom.” But she also says that for her “entire life, the constitutional right to privacy has been settled law.”

“We know it’s not up to the government to decide who we can or can’t love,” she continued. “We know the 2020 election resulted in Joe Biden’s election.”

“We must restore confidence that judges aren’t just trying to reach their favored outcomes, but actually applying the law and the constitution,” she said, adding that “our most closely-held constitutional rights are under attack by radical right-wing extremists.”

Protasiewicz is a strong supporter of liberalizing abortion access, earning an endorsement from the pro-abortion advocacy organization Emily’s Choice, which “backs Democratic women candidates who support abortion rights.” The organization said in its endorsement statement that this was “the first time in its 38-year history” that it was endorsing a candidate in a state judicial race.

At her victory celebration on Feb. 21, Protasiewicz told supporters that in the upcoming general election, “I'll be running against someone who doesn’t think women get to make their own reproductive rights,” the Milwaukee Journal Sentinel reported.

“I will guarantee you that my opponent, if elected, will uphold the 1849 near-total abortion ban,” she said.

Protasiewicz also condemned the state’s election maps as “rigged,” according to The Washington Post, and believes that people are “extremely concerned about the 2024 presidential election and whether or not that’s going to come into our Supreme Court chamber,” according to the Milwaukee Journal Sentinel.

Former Justice Daniel Kelly

The second-place finisher in the primary election is conservative former Wisconsin state Supreme Court Justice Daniel Kelly, with 24 percent of the vote, narrowly beating with a 2-point lead the other conservative in the primary race, Waukesha County Judge Jennifer Dorow, known nationally for presiding over the November 2021 trial of Darrel Brooks, who drove his SUV into a crowded Waukesha Christmas parade killing six people.

Kelly, who calls himself a “strict constructionist,” was originally appointed to the state Supreme Court in 2016 by then Gov. Scott Walker, a Republican, but lost his reelection bid by 10 points in 2020 to a liberal jurist, the now Supreme Court Justice Jill Karofsky, despite President Donald Trump’s endorsement, according to local NPR station WUVM.

The outlet also reported that Kelly believes it’s the state Legislature’s job to make the laws and the court’s job to interpret those laws, and “not bring personal political preferences into the courtroom.”

On his campaign website, Kelly promises to “preserve constitutional rights, uphold the rule of law, and prevent judicial activism” if elected.

Kelly is the only candidate who has an actual record of how he would rule on the state’s Supreme Court because he sat on it for four years from 2016 to 2020.

Kelly lists his vote on the court to overturn Democratic Gov. Ever’s COVID-19 lockdown “Safer at Home” order as one of his most important accomplishments. Calling the order “a massive overreach of executive power,” Kelly said that the result of the ruling was “the restoration of our liberties and the end of the forced government shutdowns of schools, businesses, and churches.”

His record also points to his strong support of First and Second Amendment rights with his rulings in two cases. One resulted in protecting a Marquette University professor’s freedom of speech, and the other protected concealed carry rights, respectively.

Speaking to supporters on the night of Feb. 21, Kelly referred to Protasiewicz, his opponent in the general election, as “a brave and novel threat ... to the Supreme Court,” the Milwaukee Journal Sentinel reported.

“She’s promised to put her thumb on the scales of justice, to make sure that cases come out the way she wants them to come out, rather than based on what the law commands,” he said.