I got a lot of problems with you people, and now you're going to hear about it!
It’s Festivus in Wisconsin, my friends! The Festivus Pole (Wisconsin-made, with a very high strength-to-weight ratio) sits in display on the first-floor balcony level of the Capitol rotunda, offering grievance-airing via text to all and sundry.
“Let’s rumble!”
Well, you may have seen that Wisconsin got a spectacular early Christmas present Friday afternoon, thanks to the Supreme Court of Wisconsin: Wisconsin Supreme Court orders new legislative maps in redistricting case brought by Democrats.
The redistricting case claimed that the existing state legislature maps were unconstitutional, under the state constitution of Wisconsin, because the constitution calls for contiguous districts and ours are riddled with islands of non-contiguity. Here’s mine, for example:
Wisconsin’s 78th Assembly district. Gerrymander, anyone?
The 4-3 decision held that the current state-legislature maps are unconstitutional by reason of non-contiguity and may therefore NOT be used in the upcoming 2024 elections. The legislature will have to create new contiguous maps to bring to the court. Since time is of the essence, the deadline is January 12 for the legislature to get maps passed and signed by Governor Evers (and he is not expected to sign maps that are not fair). To guard against Republican delay-shenanigans, the court has also retained two out-of-state consultants to draw up maps to consider in the event that no maps are agreed upon by the other two branches of government. (Note that this case did not take up the Congressional maps; those will remain unchanged).
This case was brought in the wake of April 2023’s elections-have-consequences, when Janet Protasiewicz clobbered Daniel Kelly by 11 percentage points in the SCOWI election. The contest was for the balance of the Wisconsin Supreme Court, and the money flowed astonishingly freely — “Judge Janet” was backed by the unions, reproductive freedom organizations, “End Citizen’s United,” and Democrats, while Kelly got the anti-abortion wing, the NRA, the police and the Republicans.
Daniel Kelly was a remarkably bad loser — he refused to make a concession call because “I do not have a worthy opponent to which I can concede," going on to call the newly-elected Justice Janet “a serial liar.”
The level of loser-dysregulation indicates what a disaster this is for the single-party rule we have had in Wisconsin since Operation REDMAP in 2010. First the Republicans swept both houses of the legislature plus Scott Walker as governor (remember him? Wisconsin still does, you’d better believe it). They then ensured the continuation of the trifecta in 2011 by holding the Wisconsin Supreme Court in a squeaker of a re-count in which conservative David Prosser barely held his seat against challenger JoAnne Kloppenburg. (I phone-banked for her in 2011; she’s been on the Court of Appeals since 2012 and I just signed her nomination-signature-gathering a couple of weeks ago as she runs again).
Well, the conservative lock on SCOWI since 2008 has meant that our REDMAPped state had no check or balance when it came to the redistricting in the wake of the 2010 census. In 2011, Wisconsin’s Republican state legislators worked with a conservative law firm to create what the Princeton Gerrymandering Project called “some of the most extreme partisan gerrymanders in the United States.” There was a single public hearing on the maps, held with lightning speed before anyone really had the opportunity to analyze what was being set before them — but it wouldn’t have mattered. The Republican votes were there, and the maps all but guaranteed that the votes would ALWAYS be there.
At least for the 2020 Census redistricting, Wisconsin had a Democratic governor to veto the next fine-tuning of the gerrymander. But guess what? We had a conservative state Supreme Court, so it didn’t matter. In fact, SCOWI was so eager to be helpful to the Republicans, they created a brand new redistricting principle out of whole cloth, the principle of “least change.” They judged a series of new proposed maps on how closely they adhered to the 2011 gerrymander. Of course, they didn’t throw out the 2011 maps for having wreaked dramatic partisan change!
So that’s where we have been. The 2022 maps meant that a purple Wisconsin, in which Democrat Tony Evers won the governorship statewide by 3% and Republican Ron Johnson won statewide by 1%, still elected Republicans to 64 of 99 state Assembly seats and 22 of 33 state Senate seats.
Our newest SCOWI justice Janet Protasewicz campaigned on the issues she cares deeply about: reproductive justice, and fair re-districting. The bombastic speaker of the Assembly, Republican Robin Vos, made much sound and fury about impeaching Justice Janet if she did not recuse herself from any case that dealt with abortion or redistricting, but he has backed down under the weight of public opinion. And so, a 4-3 opinion. Revised maps have been ordered.
My hope and expectation is that the revised maps will be actually fair maps. I am not at ALL interested in the political payback that I know will be raised in the comments. I expect and trust that the people who have been calling for fair maps will indeed propose fair maps that can be fairly approved, maps that actually reflect the general voting makeup of their part of the state and that will create, on the whole, a legislature that looks purple like Wisconsin— a legislature where running as the most extreme candidate in your primary will be a liability rather than an advantage.
However, the 3 SCOWI minority justices are deeply upset by even this possibility.
Let’s check out the Festivus grievances in the dissent written by Justice Brian Hagedorn (the most centrist of the 3 conservatives, which isn’t saying a lot, but he did at least save the state from being thrown to Trump in 2020 so that’s something):
Wisconsinites searching for an institution unpolluted by partisan warfare will not find it here.
And in fact, they have not found such in SCOWI for decades — nor can you find it in SCOTUS — but I think that these complaints did not show up in conservative dissents until, oh, right about now!
The majority heralds a new approach to judicial decision-making. It abandons prior-stated principles regarding finality in litigation, standing, stare decisis, and other normal restraints on judicial will— all in favor of expediency.
Huh, wasn’t I just writing about a NEW principle that SCOWI created in 2022 about “least change”? And finality in litigation… did I hear someone say “Roe v. Wade”?
Chief Justice Annette Ziegler was even less restrained in her grievances dissent.
Such power-hungry activism is dangerous to our constitutional framework and undermines the judiciary.
But the new “least change” principle, that had nothing to do with activist justices?
Ziegler’s dissent descended into name-calling, declaring that the new majority has established themselves as “the court of four” and “the robe-wearers” — as if ruling as a majority bloc (with which she’s had plenty of experience in recent years) were somehow illegitimate.
What other settled areas of law might be next?
Yes, that would be a concern for someone who has looked admiringly on the actions of the current SCOTUS.
And finally we have Justice Rebecca Bradley. According to her, the new majority are not robe-wearers but robe-shedders:
With its first opinion as an openly progressive faction, the members of the majority shed their robes, usurp the prerogatives of the legislature, and deliver the spoils to their preferred political party. These handmaidens of the Democratic Party trample the rule of law, dishonor the institution of the judiciary, and undermine democracy.
Naked dancing at the Capitol? But no, just the fear that the new majority is going to be just like her only on the other side of the aisle.
Here’s to the new majority! May they do better and BE better than the grievances of the previous majority.
Link to the ruling and the grievances dissents
Update: I forgot, or repressed or something, that I had written about the 2022 redistricting debacle when it happened. Just in case you want more detail on that.
