A Liberal Victory in Wisconsin

Last week, on Tuesday, Ann Walsh Bradley, the senior justice on Wisconsin’s Supreme Court, waited nervously with two colleagues in a room in a Milwaukee hotel. There was a vacancy on the court, which has seven seats, and the state had just held an election, between Janet Protasiewicz, a local circuit judge, and Daniel Kelly, a conservative former justice, to fill it. Bradley and her two colleagues are liberals; conservatives have controlled the court since 2008. A few dozen of Protasiewicz’s family members and friends were milling around, drinking and chatting, but the three justices were focussed on their phones as the results trailed in from across the state. Less than an hour after the polls closed, word came in that Protasiewicz had won. Bradley embraced the other justices and burst into tears. “At least for me—and I think for the people of the state—this is a long time coming,” she said. “I’ve been on the court for twenty-eight years, and I’ve never served with what is labelled a liberal majority, one that sees the role of government and democracy the way that I do.”

Soon after, at a hotel in Green Lake, a small resort town in central Wisconsin, Kelly delivered a concession speech that quickly drew notoriety for its vitriol. “I do not have a worthy opponent to which I can concede,” Kelly said. He called Protasiewicz a “serial liar” and said that her campaign was “beneath contempt” and “despicable.” He concluded with a petulant goodbye. “I wish Wisconsin the best of luck,” he said. “Because I think it’s going to need it.”

Protasiewicz, a progressive, won by eleven points, a margin that qualifies as a drubbing in the closely divided state, where a two- or three-point victory has been referred to as a “Wisconsin landslide.” The result could reshape the state’s political geography. Protasiewicz’s supporters were fuelled by anger over a nineteenth-century abortion law, resurrected after the U.S. Supreme Court’s Dobbs decision, that bans the procedure except to save the life of the mother, and over the state’s partisan gerrymandering, which has insured Republican control of the legislature since 2011. It offers the first chance to reverse the structural changes implemented since then, including the decimation of labor rights, the restriction of voting rights, and the dismantling of environmental regulations.

Protasiewicz outperformed expectations in solidly Democratic areas, such as Dane County, the second-most populous in the state, where she won eighty-two per cent of the vote. She made significant inroads in suburban counties that have been Republican strongholds for generations, and reclaimed most of the Driftless Area, a swath of twenty-two counties in western Wisconsin, with a tradition of economic populism, that had been trending rightward. There were other races on the ballot last week, and Democratic mayors in Racine and Green Bay, who have been under siege by Stop the Steal activists since 2020, won crucial reëlections. “Wisconsin now has a path to becoming a democracy,” Ben Wikler, the chairman of the state’s Democratic Party, told me. “This was a landslide that represented a voter uprising against an authoritarian movement which for twelve years sought to impose minority rule.”

Not long ago, the conservative conquest of Wisconsin looked irreversible. In 2011, Governor Scott Walker signed Act 10, which virtually eliminated collective-bargaining rights for public employees, the most significant attack on labor in the United States in thirty years. (A so-called right-to-work law followed.) During Walker’s tenure, Republicans also gutted campaign-finance laws, and passed one of the most restrictive voter-I.D. laws in the country. Meanwhile, the gerrymandering made Republican legislators virtually impervious to electoral defeat. (According to the Princeton Gerrymandering Project, the Wisconsin State Senate is by far the most gerrymandered legislative body in the United States, with a partisan bias that favors Republicans by nearly twenty percentage points.)

Decades of deindustrialization and the monopolization of agriculture had hollowed out key sectors of the state’s economy, making it rife for a politics of resentment, which Walker actively stoked. He once told a wealthy Republican donor that he would use a “divide-and-conquer” strategy to break the labor movement. In the 2016 Presidential election, Donald Trump narrowly won Wisconsin, which sealed his victory in the Electoral College. The Wisconsin Supreme Court was ruled by a 5–2 conservative majority. The following year, in a state Supreme Court race, liberals did not even field a candidate.

After Trump’s victory, “divide and conquer” seemed like a painfully ironic epitaph for a state with a pioneering progressive legacy: it had created the country’s first workers’-compensation law, implemented the first state income tax, and was the first to recognize collective-bargaining rights for public employees. Much of the New Deal, in fact, including Social Security, was crafted by Wisconsinites influenced by their state’s homegrown social-democratic tradition, which emphasized income equality, restraints on corporate power, and support for public institutions, clean elections, and transparent government.

​​For years, national Democrats largely ignored what was happening in Wisconsin. During the protests against Act 10, in 2011, which lasted for weeks and drew one and a half million people, President Barack Obama failed to show up, despite a campaign pledge that he would “put on a comfortable pair of shoes” and “walk on that picket line with you” if collective bargaining was ever under attack. The next year, when Walker faced a recall election sparked by the protest movement, Obama declined to campaign with his opponent. (A flood of dark money helped Walker survive the recall.) In 2016, Hillary Clinton didn’t once campaign in Wisconsin during the general election. After her defeat, she did pay a visit—to promote her book “What Happened.”

At the same time, a remarkable number of citizen-activists maintained hope that the state’s democratic ideals could be restored. I spoke to several of them for a piece I wrote for The New Yorker about the run-up to last week’s Supreme Court election. Mary Lynne Donohue, a former plaintiff in a landmark lawsuit challenging the state’s gerrymandering, told me that she co-chaired a grassroots organizing effort that included knocking on thirty-five hundred doors in her home town of Sheboygan. When the election results came in, Donohue, who is seventy-three years old, seemed as excited that Democrats had held seats on the city council and school board as she was about Protasiewicz’s victory. “Our local party has been transformed,” she told me. “People are finally waking up.”

Courts move slowly, and Protasiewicz won’t even be seated until August 1st. In the near term, the abortion ban will remain in place. But providers are hopeful. Kristin Lyerly, an ob-gyn who lives in Green Bay, has been commuting to Minnesota to practice. Now she is making plans to open a clinic in Wisconsin. Legal activists have also begun to mobilize. Jeff Mandell, a co-founder of Law Forward, a progressive, nonprofit law firm, is helping to build a new gerrymandering case, which, if successful, may create momentum for similar challenges in other states. (Two days after the election in Wisconsin, the legislature in Tennessee expelled two Black members for protesting gun violence, using super-majorities made possible by partisan gerrymandering.) Progressive lawyers are also discussing challenges to Act 10, the right-to-work law, the voter-I.D. law, and legislation that stripped significant powers from the offices of the governor and the attorney general, which passed during a lame-duck session, in 2018, after Walker lost to a Democrat.

The election, however, was not a total defeat for the right, which won ballot referendums that gave judges more power over bail and supported work requirements for welfare recipients. More important, Dan Knodl, a Republican, narrowly won a special election to fill a vacancy in the State Senate, giving the G.O.P. a veto-proof super-majority. Just before last week’s election, Knodl floated the idea that the State Senate could impeach Protasiewicz, for having sentenced too leniently, he said, as a circuit-court judge. After she won, the Senate majority leader dismissed the idea, but the fact that it was raised, coupled with Kelly’s defiant concession speech, suggests that the state’s Republican Party is willing to continue rejecting democratic norms.

It’s not yet clear that crucial democratic pillars—widespread economic security, a strong labor movement, durable and well-funded public institutions—can be rebuilt. (Since 2010, Wisconsin’s union membership has declined by half. Today, barely seven per cent of its workforce is unionized.) A Democratic coalition that relies on Republican-leaning suburbanites may prove fragile, especially if Trump disappears and abortion rights are restored. And more than forty-five million dollars, most of it dark money, was spent on Protasiewicz’s and Kelly’s campaigns, making this the most expensive judicial race in U.S. history—hardly a sign of a healthy democracy.

In 1854, Wisconsin’s Supreme Court ruled that the Fugitive Slave Act, which forced escaped slaves to be returned to their owners, was unconstitutional. It was the only state to do so. Five years later, the U.S. Supreme Court overturned that ruling in a decision that helped ignite the Civil War. A generation after that, Wisconsin’s Supreme Court upheld one of the country’s first restrictions on laissez-faire capitalism: a law regulating the railroad companies, which were gouging farmers and, along with the timber industry, effectively controlling the state legislature. Edward G. Ryan, the chief justice, wrote that failure to uphold the law, which helped pave the way for government regulation of big industries, would “establish great corporations as independent powers within the state.”

Justice Ann Walsh Bradley is aware of this lineage; when she joined the court, in 1995, it was, in her mind, still intact. Back then, she told me, “we were without a doubt consistently considered one of the very top state Supreme Courts in the nation.” She cited the efforts of Shirley Abrahamson, the first woman to serve on the court, who helped pioneer the use of restorative and therapeutic justice, and who launched a program called Justice on Wheels, which took court proceedings on the road, to communities across the state, to make the system more transparent. “In some ways, I see this election as a continuation of Shirley’s legacy,” Bradley told me. “The burden of responsibility is heavy on my shoulders.” That weight is likely to grow heavier. In 2025, Bradley will have to defend her own seat on the court—and its new liberal majority. For the moment, however, she’s still savoring the victory. “Even talking right now with you,” she said, “there are chills that go up and down my spine.” 

A Liberal Victory in Wisconsin
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