4-3 decisions continue to divide Wisconsin Supreme Court, raise the stakes for 2023 election

MADISON, Wis. — The 4-3 decision handed down by the Wisconsin Supreme Court Tuesday marks another instance of conservative swing Justice Brian Hagedorn siding with the liberals on the bench, in a move that has conservatives frustrated.

“It is putatively a 4-3 conservative court right now, but I don’t think too many conservatives feel that that’s correct,” UW-Madison professor Ryan Owens said. “I think conservatives are very, very disappointed with him.”

Hagedorn is the most recent conservative addition to a court that has been moving further left in the past few election cycles. A seat will open up next April, but it is due to the retiring conservative Justice Patience Roggensack. Conservatives would have to win in April to avoid a solid-liberal majority on the court.

“I think they’re going to be highly, highly motivated to get out there, to protect one of the four [conservative] seats and make sure that they don’t lose it,” Owens said.

There are already two liberal candidates lining up for the April 2023 election: Dane County Judge Everett Mitchell and Milwaukee County Judge Janet Protasiewicz.

The race is also falling against the backdrop of the U.S. Supreme Court’s anticipated decision on abortion, which will likely be released this month. Owens said that may be a factor in the Wisconsin Supreme Court race.

“If [the abortion case] Dobbs comes down the way we think it will come down… I think a lot of people understand that, with justices of either a liberal jurisprudential bent or a conservative jurisprudential bent, they will interpret the Constitution (in) particular ways,” he said.

This means a liberal court in Wisconsin could interpret the state’s existing abortion ban in a liberal way — possibly creating more of a desire for liberal voters to turn out next April.

Owens does not see the issue necessarily impacting the fall midterms, however.

“I think people who are pro-choice are going to still be pro-choice. People are pro-life, they’re going to still be pro-life,” Owens said. “My guess is the economy is really what’s going to motivate people, so that’s sort of baked into the cake.”

Tuesday’s Supreme Court decision was largely a technical decision on whether the state could release the names of businesses that have a certain number of employees test positive for COVID-19. The majority opinion, written by Justice Rebecca Dallet, ruled that courts could not block the release of those names under Wisconsin’s open records law.

Wisconsin Manufacturers and Commerce, the state’s largest business lobby, sued to prevent the names from being released.

In a statement, the group’s president said he was “disappointed” by the decision.

“WMC disagrees with the Supreme Court’s decision, which has opened the door to massive public intrusion into private medical records possessed by state agencies,” said president Kurt Bauer. “The governor’s attempt to shame and embarrass Wisconsin businesses is wrong, and the Supreme Court is equally wrong to allow it.”