What’s Next in Wisconsin
Republican state legislators threaten to upset long-standing norms of judicial independence.
The biggest state court news over the past two weeks was not a case but an election: Janet Protasiewicz won a seat on the Wisconsin Supreme Court, ending a 15-year conservative majority.
I won’t repeat the extensive coverage of what this change is likely to mean for the future of abortion rights and gerrymandering in Wisconsin. (And as Dustin Brown at the University of Wisconsin’s State Democracy Research Initiative reminds us, you shouldn’t sleep on important cases about the balance of power between the governor and state legislature.)
What’s received less attention is how Wisconsin’s conservative state legislature might respond to Justice Protasiewicz’s win and the Wisconsin Supreme Court’s new liberal majority. When courts in Pennsylvania and Ohio struck down electoral maps as partisan gerrymanders in recent years, for example, some lawmakers threatened to impeach the sitting justices. In Wisconsin, impeachment rumblings have already started.
Historically, legislators have abided by a strong norm against impeaching judges for unpopular rulings — dating all the way back to a failed attempt to remove U.S. Supreme Court Justice Samuel Chase in 1804. But how strongly these judicial independence values hold will be an important test as state courts become increasingly high profile.
Another thing to watch will be bills that target the court’s power or independence by, for example, stripping its jurisdiction or remedial powers — a national trend, though likely moderated in Wisconsin by the threat of the Democratic governor’s veto.
All of this is to say that when it comes to state courts, judicial politics doesn’t end on Election Day. Sometimes the targeting of courts by the executive and legislative branches is dramatic — in 2019, Alaska’s governor used a line-item veto to strike $335,000 from the judiciary’s budget in retaliation for a state supreme court decision concerning state funding of certain abortion services. More often, changes can appear technocratic and fly under the radar — with major consequences for a court’s power and relationship to the political branches.
In a new piece for State Court Report, Northwestern Law Professor Zachary Clopton details one such little-appreciated mechanism: altering the scope of state supreme courts’ original jurisdiction. Original jurisdiction means that a case can skip over the lower courts and land directly in the supreme court. It can have major practical consequences, impacting how quickly a case can move, how the facts get developed, and which judges get to weigh in along the way. As Clopton explains, many state supreme courts have broad original jurisdiction, which has been used in recent years in cases involving abortion rights, elections, the death penalty, LGBTQ+ rights, guns, and more.
Clopton finds that state legislatures regularly address state supreme courts’ original jurisdiction, creating “opportunities for legislatures to alter the way disputes are litigated and decided, including in ways that might remind readers of better-known maneuvers such as court packing and jurisdiction stripping.” His research is a fascinating look into how the path a case takes can affect substantive outcomes for litigants, and how often these jurisdictional decisions reflect political choices by state legislatures.
Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.
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