The Volokh Conspiracy

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Justice Janet Protasiewicz, Say Hello To Caperton v. Massey

The candidate, who spoke about her "values" on abortion and gerrymandering, received substantial financial support from donors who lobby for those two key issues.


On Monday, I spoke at the University of Wisconsin at Madison–my first time in the Badger State. As I drove from Milwaukee to the state capital, I scanned local radio stations. Virtually every commercial concerned the upcoming race for the state supreme court. Janet Protasiewicz (pronounced pro-tuh-SAY-witz), the "liberal" candidate, was facing off against Daniel Kelly, the "conservative" candidate. I use scare-quotes because the state does not provide party affiliation for judicial races, but everyone knew where the candidates stood. Indeed, the election had largely become a referendum on two primary issues: abortion and gerrymandering. The current Supreme Court, which has a 4-3 conservative majority, had upheld the maps drawn by the Republican-controlled legislature. And that same Court has not recognized a right to abortion under the state Constitution. The victor of the election would cast the deciding vote on these two issues, and many more. Unsurprisingly, money flooded into the state–more than $45 million. Protasiewicz, in particular, received about $9 million from the state Democratic party.

Moreover, the candidates themselves jumped into the fray. Kelly routinely attacked Protasiewicz as someone who would ignore the Constitution and rule of law. I heard him give a live interview on a conservative call-in program as I was driving back to the airport. It sounded like a speech any politician would give. Protasiewicz, on the other hand, seemed to strongly signal how she would vote on the abortion and gerrymandering. Don't take my word for it. Here is the New York Times:

Judge Protasiewicz, 60, shattered long-held notions of how judicial candidates should conduct themselves by making her political priorities central to her campaign. She made explicit her support for abortion rights and called the maps, which gave Republicans near-supermajority control of the Legislature, "rigged" and "unfair." . .  .

Judge Protasiewicz made a calculation from the start of the race that Wisconsin voters would reward her for making clear her positions on abortion rights and the state's maps — issues most likely to animate and energize the base of the Democratic Party.

In an interview at her home on Tuesday before the results were known, Judge Protasiewicz (pronounced pro-tuh-SAY-witz) attributed her success on the campaign trail to the decision to inform voters of what she called "my values," as opposed to Justice Kelly, who used fewer specifics about his positions.

"Rather than reading between the lines and having to do your sleuthing around like I think people have to do with him, I think I would rather just let people know what my values are," she said. "We'll see tonight if the electorate appreciates that candor or not."

Protasiewicz used the word "values" to avoid opining on the legal issues. But her statements, at a minimum, raise serious questions about her impartiality.

I flew home on Monday evening, and the election was held on Tuesday. Protasiewicz won by a comfortable margin. And those who supported her campaign, including Wisconsin Democrats, will soon reap the benefits:

Once Judge Protasiewicz assumes her place on the court on Aug. 1, the first priority for Wisconsin Democrats will be to bring a case to challenge the current legislative maps, which have given Republicans all but unbreakable control of the state government in Madison.

Jeffrey A. Mandell, the president of Law Forward, a progressive law firm that has represented Mr. Evers, said he would file a legal request for the Supreme Court to hear a redistricting case the day after Judge Protasiewicz is seated.

"Pretty much everything problematic in Wisconsin flows from the gerrymandering," Mr. Mandell said in an interview on Tuesday. "Trying to address the gerrymander and reverse the extreme partisan gerrymandering we have is the highest priority."

Remember how bad it was when the North Carolina Supreme Court revisited its earlier position on legislative maps? Well, now it will be good that the Wisconsin Supreme Court does the same thing. Everyone, switch sides!

I think it likely that Protasiewicz will face recusal motions on cases concerning abortion and gerrymandering. As I understand the protocol, if Protasiewicz denies the recusal motion, the matter would eventually be appealed to the full state supreme Court. And it seems likely that the bench would divide 3-3, thus leaving Protasiewicz on the case.

But there is another option for recusal in federal court. Caperton v. A. T. Massey Coal Co. (2009) held that in some "extreme" cases, the failure of a judge to recuse may violate the Due Process Cause of the Fourteenth Amendment. Justice Kennedy wrote the majority opinion in Caperton. Chief Justice Roberts wrote the principal dissent, which was joined by Justices Scalia, Thomas and Alito.

I won't even bother explaining the reasoning in Justice Kennedy's majority opinion because there isn't any. For Justice Kennedy, any problem could be cured by the Fourteenth Amendment. Thankfully he is retired. Alas, his precedents remain binding on the lower courts until expressly overruled. Justice Scalia's Talmudic dissent was, as always, right on point:

A Talmudic maxim instructs with respect to the Scripture: "Turn it over, and turn it over, for all is therein." The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed. 1935). Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution.

But I do want to flag the Chief's dissent. He listed four questions–err, sorry in the Passover spirit–forty questions that the majority failed to answer. Question #9 is especially relevant:

9.    What if the case involves a social or ideological issue rather than a financial one? Must a judge recuse from cases involving, say, abortion rights if he has received "disproportionate" support from individuals who feel strongly about either side of that issue? If the supporter wants to help elect judges who are "tough on crime," must the judge recuse in all criminal cases?

Justice Janet Protasiewicz, get ready for the Caperton claims.