The Wisconsin Supreme Court’s high-profile year: A conversation with Justice Brian Hagedorn

“Good judges are going to reach outcomes they don’t like. If they’re not, they’re not doing their job.”

In Wisconsin Supreme Court Justice Brian Hagedorn’s decisions over the past year, he’s often made clear that his vote isn’t necessarily a reflection of either his own beliefs or what best policy might look like for the state.

When he ruled with the conservative majority this April that the Department of Health Services couldn’t limit large gatherings without following the administrative rules process, it was in contrast to his own dissent to what the court had ruled for the DHS a year ago.

“This case arises because Palm issued another order doing exactly what this court said she may not do: limit public gatherings by statewide order without promulgating a rule,” he wrote in a concurring opinion. He added that it was no secret what his objections were to that very ruling last year.

“The question in this case is not whether the Governor acted wisely; it is whether he acted lawfully,” he wrote in another March decision that struck down a statewide mask order in ruling that Gov. Evers could not issue multiple emergency orders for the same pandemic.

Other times, like when he sided with the court’s liberal majority blocking multiple attempts to overthrow November’s election in Wisconsin, he made his beliefs on the importance of the case clear.

“We are invited to invalidate the entire presidential election in Wisconsin by declaring it ‘null’ — yes, the whole thing,” he wrote. “This is a dangerous path we are being asked to tread.”

Judicial decisions

Ideologically, Hagedorn says, a judge should not be predictable. However, “I want to make clear, my goal isn’t unpredictability,” he explained. “My goal is predictability based on the law.”

Describing himself as an originalist and a textualist, Hagedorn adheres to a conservative judicial philosophy that emphasizes interpretation of the law based on its text–in the context of its original meaning and the intent of its writers. There’s usually a measure of interpretation needed when applying any law, he noted, but a goal of his philosophy is to remove his personal biases and opinions from the matter.

“When you’re deciding these cases, always needs to be checked by: ‘Are you being faithful to the words that are there; is this a faithful effort to apply the law that’s actually there?'”

When following the text, he said, ‘That sometimes leads to outcomes that some members of the political spectrum may like, and other times leads to outcomes that the other side may like–because laws aren’t only written by one side.”

In a chaotic spring affair leading to headlines across the country, Hagedorn sided with conservative justices to stop Gov. Evers from blocking the spring election in April as COVID-19 spread across the country. Elections clerks were left in limbo in the days leading up to the election, with decisions changing sometimes by the hour. Gov. Evers first said he had no legal authority to stop in-person voting from going forward as the state battled to shut down the virus, but reversed that position the day before the April 7 election in a decision swiftly shut down by the Wisconsin Supreme Court’s conservative faction.

Just over an hour later,  a conservative majority on the U.S. Supreme Court ruled that absentee ballots would have to be postmarked on April 7 to be counted, a further blow to Gov. Evers and election clerks who had been left scrambling with unclear rules and a historic influx of absentee ballots.

Weeks later, Hagedorn found himself instead in the minority when ruling on Gov. Ever’s Safer At Home order, writing a dissent that hinged on the laws governing administrative rules and the separation of powers between branches, arguing the legislature had no basis to challenge in court how the Department of Health Services had applied the law that legislators had written.

“The legislature may have buyer’s remorse for the breadth of discretion it gave to DHS,” Hagedorn wrote. “But those are the laws it drafted; we must read them faithfully whether we like them or not.”

Balance of power on the state’s highest court

When Justice Hagedorn was first elected in 2019, he came into a solid conservative majority–a majority that had held up for decades in Wisconsin’s highest court. When he sided with liberals in May, his vote wasn’t needed to ultimately overturn the governor’s Safer At Home order; Justice Dan Kelly was considered a reliable vote for conservative priorities.

That all changed, of course, when Justice Kelly was replaced after the spring election with liberal Justice Jill Karofsky. Conservative-backed justices now had a slimmed majority then they’d become accustomed to.

“They always had a pretty much bulletproof majority,” Marquette University history professor Alan Ball said. “Now, they can’t win without him.”

Ball writes the SCOWstats blog, tracking the data of how justices vote in each cycle. And this past year was anything but normal; Justice Hagedorn voted with the majority on every 4-3 decision in the 2020-2021 cycle through early April, aligning him with both liberal and conservative justices in a clear swing justice role.

“I’d say that you could go even farther and maybe call him a crucial vote,” Ball said. “It’s been remarkable; every single 4-3 case has needed him.”

That power balance could continue for a few years at least, Ball noted. Justice Patience Roggensack’s term expires in 2023, and much could hinge on whether she runs again–or whether she’s replaced by a liberal or conservative. A conservative justice would preserve the current tenuous conservative majority when Hagedorn sides with them; a liberal justice would give the court a clear liberal majority for the first time in years.

“It’s always been at least a majority leaning conservative, if not a really solid conservative majority, for decades,” Ball said.

Behind the decisions

Particularly after the wave of lawsuits following November’s election, Hagedorn found himself in the hot seat from the party he had previously worked for (he served as chief legal counsel to former Governor Scott Walker for five years.), and attracted backlash from President Donald Trump on Twitter.

He had to receive increased police protection–along with other liberal members of the bench in the wake of their rulings. While the public and the Republican Party’s views don’t necessarily sway him, he says, he also dealt with misunderstandings from close friends and family.

“I have a lot of friends who didn’t like the policy outcome, you know, of certain decisions that I’ve made. Maybe some family too, and that’s okay,” he said. “The good thing is that people who know me also know that I’m sincere, and I meant what I said.”

He’s changed his vote after reading a majority opinion, Hagedorn admitted. In a normal court process that isn’t compressed into hours instead of weeks or months, justices circulate opinions for weeks before releasing a final decision. And while it’s not common, it’s also not abnormal to the decision process for a justice to be swayed by another’s argument, he said.

And while writing opinions is typically a back-and-forth collaborative project that can stretch over weeks or sometimes months, there’s been a handful of times over the past year that an opinion happened over a matter of hours–with the help of some football, late nights, and Caesars pizza, Hagedorn noted with a chuckle.

“The campaign is challenging the rulebook adopted before the season began,” he wrote in the majority opinion in one of the lawsuits disputing November’s election.

Overall, he agrees there’s an increasing danger that the court–and the decisions they’re asked to rule on–is becoming increasingly politicized. But for him, there’s also a larger message.

“The way we talk about a lot of things is broken,” he said. “We’re people, and treating people with dignity and respect that all people ought to be treated with–I hope that becomes a greater part of our culture, which is so tribalized and so polarized.”