In 2011, as tens of thousands of left-leaning demonstrators occupied the Wisconsin state capitol to protest a new bill gutting public employee unions, a prank caller posing as the right-wing billionaire David Koch got the Wisconsin governor, Scott Walker, on the phone. Just two years after Barack Obama won Wisconsin by 14 points, Walker had been swept into office by the Tea Party wave. He saw the anti-union law, Act 10, as his chance to follow in the footsteps of his idol, Ronald Reagan, who’d fired over 11,000 striking air traffic controllers in 1981, a devastating blow to the labor movement. Republican governors nationwide, Walker boasted, would follow his lead. “This is our moment,” he told the man he thought was Koch.
In addition to eviscerating unions, Act 10 was designed to undermine the Democratic Party that depended on them. If similar bills were “enacted in a dozen more states,” wrote the right-wing activist Grover Norquist, “the modern Democratic Party will cease to be a competitive power in American politics.” Pro-union forces in Wisconsin tried hard to fight back. Democratic legislators fled the state to deny Republicans a quorum. Students walked out of schools and teachers held sickouts. People camped at the capitol for almost three weeks, with sympathizers around the world sending them pizzas. As demonstrations spread to other states, The New York Times drew comparisons to the Arab Spring, asking if Wisconsin was “the Tunisia of collective bargaining rights.” But Republicans jammed the law through, and Wisconsin’s hard right turn was underway.
Walker and his party would go on to lock in G.O.P. rule, enacting shockingly lopsided electoral maps and assuring continuing Republican control of the state legislature, as well as dominance of Wisconsin’s national congressional delegation. Nothing since, not even the election of a Democratic governor, has been able to loosen Republicans’ gerrymandered grip on the state. That grip has been used to restrict voting rights, pass an anti-union right-to-work law, cut funding to education, dismantle environmental protections and make Wisconsin one of the hardest states in the country in which to cast a ballot.
Democrats, on the other hand, are powerless to pass laws of their own. In 2022, the Wisconsin Supreme Court ruled, 4-3, that the state must adopt new, even more gerrymandered maps passed by the legislature. As Craig Gilbert wrote in the Milwaukee Journal Sentinel, under those maps, to win a bare majority in the Assembly, Democrats would have to win the statewide popular vote by double digits. The Wisconsin Democratic representative Mark Pocan put it this way: For Democrats to win a majority in the legislature, “The Republican Party would have to come out and say we’re now the party of the Chicago Bears and the Minnesota Vikings.”
Impervious to voter sentiment, the Republican edifice of power has appeared unbreakable. But a contentious state Supreme Court election on April 4 could finally put a crack in it.
A judicial election in a state you probably don’t live in — it might be hard to get excited about. But the Wisconsin Supreme Court election, pitting the mild-mannered, liberal-leaning family court judge Janet Protasiewicz against the Trumpist former state Supreme Court justice Daniel Kelly, is by far the most important political contest of the year.
The race, which has gotten quite vicious, is ostensibly nonpartisan; candidates are not affiliated with a party on the ballot. But its political stakes are clear. Wisconsin’s Supreme Court currently has a 4-3 conservative majority, and one of the conservatives is retiring. If elected, Protasiewicz hopes to take a fresh look at the maps. She wants to revisit Act 10, which the state Supreme Court upheld in 2014. “Since 2011,” she told me in Madison last week, “it’s just been a spiral downward to a place where our democracy is really at peril.” This election is a singular chance to reverse that spiral.
It could also determine whether the next presidential election is free and fair, shaking up a swing state court that came frighteningly close to overturning the 2020 vote. And if that isn’t enough, this election will also be a referendum on abortion rights, which is turning out to be the key issue in the race. When the Supreme Court overturned Roe v. Wade last year, an 1849 Wisconsin law banning almost all abortions went into effect. The state’s Democratic attorney general has filed a lawsuit challenging the ban, and the case will almost certainly make its way to Wisconsin’s Supreme Court.
“The state Supreme Court has always been the trump card for Republicans,” Charlie Sykes, once an influential right-wing radio host in Wisconsin and now the co-founder of the Never Trump conservative publication The Bulwark, told me. “You flip that and it changes the rules and dynamics of Wisconsin politics pretty fundamentally.”
Like anyone auditioning for a judicial role, Protasiewicz, a former prosecutor who likes to tout her “common sense,” won’t say explicitly how she’d rule on the state’s abortion ban. But she offers strong hints. “You’ve had women and families counting on the protections of Roe for 50 years, right?” she told me. “Three generations of women, probably, counting on those protections, and now they’re gone.”
Abortion is the primary reason that Protasiewicz’s race is garnering both national attention and, more importantly, national money, becoming the most expensive state Supreme Court contest in American history. After all, in the wake of Dobbs v. Jackson Women’s Health Organization, the Supreme Court decision scrapping Roe, state courts have emerged as crucial backstops for abortion rights, blocking abortion bans in states including South Carolina and North Dakota. “We’ve got this 1849 ban, and I think it is certainly motivating people to get out and vote,” said Protasiewicz.
When a group of obstetrician-gynecologists held an event for her earlier this month, Protasiewicz said they told her they feared that doctors would no longer want to practice in Wisconsin, worried that routine medical care would run afoul of the law.
These fears are well-grounded. One doctor told The New York Times about a patient who was denied standard care for a miscarriage and left bleeding for days. NBC News reported on a Wisconsin doctor who had to jump through hoops to care for a woman whose water had broken at 18 weeks, giving her baby almost no chance for survival and putting her at risk for sepsis. Protasiewicz recounted that the ob-gyns told her, “We don’t want to practice someplace where we can’t provide the necessary services that we feel we need to provide.”
“I can’t tell you what I would do in a particular case,” Protasiewicz told me. But, she added, her “personal value” is that “those reproductive health choices should be able to be made by a woman who’s carrying a fetus.”
Protasiewicz’s frankness about her views, and the policy implications of this election, seem to infuriate her opponent. In a contentious debate in Madison last week, in front of a standing-room-only crowd, the mutual contempt between candidates was palpable. Kelly kept pointing at Protasiewicz and calling her a liar as she looked straight ahead; the event had a bit of the same vibe as the infamous second presidential debate between Donald Trump and Hillary Clinton. Kelly inveighed against Protasiewicz for speaking in terms of policy outcomes rather than legal doctrine, calling her “a candidate who does nothing but talk about her personal politics.”
“See, this is a judicial election,” Kelly said, his voice oozing with condescension. “You should be talking about things that the courts do.” On the trail, Kelly refers to his opponent as “Politician Protasiewicz” and claims that she’ll replace the rule of law with the “Rule of Janet.”
Yet there’s little doubt that Kelly, who was appointed to the bench in 2016 by Walker when another justice retired, will be a reliable vote for the right. That’s why Wisconsin Right to Life has endorsed him and the anti-abortion group Susan B. Anthony List is running ads on his behalf. It’s why a well-known MAGA influencer and a hard-core Christian nationalist have been campaigning for him. As a former Republican, Sykes was bombarded with pro-Kelly mailings before the February primary. Two-thirds of them, he said, were about Kelly’s anti-abortion bona fides. (Kelly’s campaign did not respond to a request for an interview.)
The current Wisconsin Supreme Court justice Jill Karofsky, who beat Kelly when he ran to retain his seat in 2020, was in the audience at the debate, and found his pretensions to neutrality risible. “Kelly always ruled in favor of the right-wing special interests,” Karofsky told me. “He was put on the court to carry the water of the right wing, and he did that job phenomenally.”
The combination of strenuous claims of neutrality and consistently partisan rulings is, of course, a familiar one in judges who come out of the right-wing legal movement, including those who sit on the U.S. Supreme Court. Again and again, conservative justices have insisted that the ideological beliefs that fueled their careers will have no bearing on their jurisprudence, then used the bench to shore up Republican power. One result is that, for Democrats, the courts have become utterly demystified. They are done pretending that judges are merely legal umpires.
Ben Wikler, chair of the Wisconsin Democratic Party, pointed out that in 2019, Lisa Neubauer, the Democratic-leaning Supreme Court candidate, ran a largely nonpartisan race focused on her experience and qualifications. “In the final stretch of that campaign, the Republican apparatus came in with the singular goal of getting every Republican to vote for the conservative candidate,” said Wikler, knowing that Neubauer “hadn’t made a partisan appeal to Democrats to counterbalance that.” Though Neubauer had been ahead in internal polls, she lost by 5,981 votes. “That was probably the last election in which someone tries to run a campaign that isn’t explicit about the values of the candidate,” Wikler said.
In 2018, a Democrat, Tony Evers, defeated Walker in the governor’s race. Another Democrat, Josh Kaul, won the race for attorney general. Republicans in the Legislature responded by weakening the powers of both offices. Among other things, they passed laws, signed by a lame-duck Walker, giving themselves more authority over key appointments, blocking Evers and Kaul from withdrawing from a lawsuit challenging the Affordable Care Act and ensuring that Evers would be unable to get rid of work requirements for some Medicaid recipients. (They also cut early voting in Democratic strongholds from six weeks to two.) The Wisconsin Supreme Court upheld the laws along ideological lines.
An even bigger challenge to democracy came in 2020. Had Karofsky not replaced Kelly, it’s likely that the court would have overturned Wisconsin’s presidential vote, plunging the country into chaos. As it was, the state Supreme Court decided by a single vote to toss out the Trump campaign’s suit seeking to reverse his Wisconsin loss. Even though there was no evidence of fraud, the Wisconsin Supreme Court justice Rebecca Frank Dallet told me, “there were still three people who were willing to throw out people’s ballots.”
After Kelly left the court, he was paid by the Wisconsin Republican Party and the Republican National Committee to work on “election integrity.” His name surfaced in Congress’s Jan. 6 investigation, with the former Wisconsin Republican chair Andrew Hitt saying that Kelly had been part of “pretty extensive conversations” on the scheme to create a slate of fake Republican electors who would attempt to cast votes for Trump.
The one right-leaning judge who voted against the Trump campaign in 2020 was Brian Hagedorn. Kelly has blasted him for it, calling him “supremely unreliable.” Even if Kelly wins in April, Hagedorn will still be on the court, so Republicans can’t count on a majority if they contest the state’s election results in 2024. Nevertheless, several people I spoke to said they think Hagedorn might sign on to a less preposterous challenge than the one brought by the Trump team. “I don’t take him for granted at all,” said Sykes, whose ex-wife is a former Wisconsin Supreme Court justice. “Because the pressures are so intense here on these kinds of things. So I’d be very worried.”
As of this writing, there’s been no public polling on the Supreme Court race. Protasiewicz’s internal polling shows her ahead by the mid-to-high single digits. A poll by Wisconsin Manufacturers and Commerce, a right-wing group supporting Kelly, also had Protasiewicz ahead, but only by two points, within the margin of error.
Last week, Kelly campaigned with Matthew Trewhella, a fundamentalist pastor who has defended the murder of abortion providers, and Scott Presler, a right-wing influencer who was at the U.S. Capitol on Jan. 6. “What that tells me is that Kelly has gotten so deep into swimming in that really hard-right cesspool, that I’m not sure he’s really reaching out to the swing voters,” said Sykes.
Still, given that April elections historically have low turnout, getting out the base can be enough to win. “The fact that both sides are spending heavily at the end certainly suggests that both sides believe the race may still be within reach,” said Charles Franklin, a political scientist and the director of the Marquette Law School Poll.
With so much riding on the outcome, the contest has turned extraordinarily ugly. During the primary election that whittled the field to Kelly and Protasiewicz, the right-wing radio host Dan O’Donnell boasted of his readiness to play dirty. “I can do dirty tricks too,” O’Donnell said, suggesting he’d put out ads claiming that Protasiewicz opposed abortion. He added: “We can fool them. We can trick them.” In a Twitter group chat about plans for anti-Protasiewicz disinformation, later leaked online, one right-wing troll wrote, “I could doctor a couple videos or articles about how she said the N-word or something.”
In what may or may not be a coincidence, earlier this month a conservative website, Wisconsin Right Now, published allegations that, in the 1990s, Protasiewicz used the N-word, and that she’d abused her ex-husband, Patrick Madden, who is deceased.
Protasiewicz was married to Madden, a much older conservative judge, for 10 months when she was in her 30s, and their divorce was acrimonious. The sources named by Wisconsin Right Now were an old friend of her ex-husband and her ex-husband’s son, with whom Protasiewicz had a hostile relationship. According to divorce records, one reason Protasiewicz and her ex split up was that Prostasiewicz was unhappy that Michael Madden, who was on probation after serving a prison term for marijuana trafficking, was living with them. The divorce records make no mention of abuse, though O’Donnell, who has amplified the story, argued on his radio show that Patrick Madden must have been too ashamed to admit it.
The Wisconsin Republican Party has repeatedly tweeted about the Wisconsin Right Now stories. In a press release, Kelly said that the allegations “are troubling to say the least,” calling for a “swift and full explanation.” At first, it seemed the issue might remain confined to the fever swamps. Last week, though, the Milwaukee Journal Sentinel asked Protasiewicz about the claims during a videotaped editorial board meeting.
“It’s an absolute lie, 100 percent. To me it smacks of some type of level of desperation,” she said. (The Journal Sentinel later reported, of Madden, “Some details of the stepson’s story have changed, and his siblings did not confirm either allegation.”)
These accusations now seem set to become part of the right’s closing pitch. “Like everybody around politics, I get a ton of emails from both sides,” said Franklin, the political scientist from Marquette. “And those claims are being pushed very heavily in the Republican and allied group emails I get.”
Still, said Franklin, this is an election that is overwhelmingly about abortion and redistricting. These are issues that affect people’s real lives, and they’re deeply intertwined. In a decade of polling, Franklin said, roughly 60 percent to 65 percent of Wisconsin voters have consistently said that abortion should be legal in all or most circumstances. Gerrymandering means that the majority cannot enact its beliefs into law.
“If I had one big thing that I want to get across to you, it’s that the deadlock between the political branches, which is related to districting, is one of the reasons why the Supreme Court has become such a hot race,” said Franklin. “Because it’s become the arbiter of that deadlock.”
There’s a certain irony here. For decades, conservatives have crusaded to overturn Roe v. Wade, nurturing a bench of right-wing judges and building the political power needed to confirm them. In Wisconsin as elsewhere, opposition to abortion motivated the grass roots and united most of the right’s factions. As BuzzFeed News reported, it was probably the central issue fueling the political rise of Scott Walker, who served as president of the Students for Life chapter at Marquette University. “Support of abortion opponents is credited in Walker’s victory,” a 1993 Milwaukee Journal headline said when he won the primary for an assembly seat.
But in finally triumphing, the right created a backlash that threatens their durable hold on power in a crucial swing state. “Now that Roe v. Wade is gone, we move from the court of law to the court of public opinion,” Walker tweeted after the Dobbs decision. Inasmuch as that’s true in Wisconsin, it could mean the beginning of the end of what Walker built there. And because Wisconsin has been a pioneer in minority rule, the restoration of democracy there would resonate nationally.
“In my election in 2020 we worked really, really hard to try to explain to people why the court matters. How it’s relevant to their everyday life,” said Karofsky. “And I think that the U.S. Supreme Court, in the Dobbs decision, made that crystal clear for everyone.”
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