Get ready for 6 years of Supreme Court races

Wisconsin has held just 1 Supreme Court race in the past four years, but that is about to change. The 2025 SCOWIS race kicks off a six-year streak of annual elections. Six out of seven seats will be elected before the next redistricting cycle.

The rest of this post will briefly recap how the current 7 justices were elected. These races cover a wide variety of circumstances and likely give a good preview of things to come. If the past few years are any guide, these races will feature high turnout and extreme partisanship.

Appointment calculus

All of the current justices are serving a ten-year term to which they were elected. It’s fairly common, however, for justices to end their terms early, whether due to death or retirement.

When this happens, the governor independently appoints a successor, with no involvement from the legislature. That appointed justice then stands for election in the first year “when no other justice is to be elected,” per Wisc. Stat. 8.50(4)(f)1.

Consequently, if Janet Protasiewicz (elected in 2023) were to resign (or otherwise leave office), the governor’s appointed replacement would serve until an election in 2031. If another of the current justices vacates before their term ends, their appointed successor will serve until the year when their election was already scheduled.

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The stakes

Voters this April will choose whether liberal candidate Susan Crawford or former Republican Attorney General Brad Schimel will replace retiring justice Anne Walsh Bradley on the bench.

Bradley is part of the 4-justice liberal majority, so a victory by Schimel would flip control of the court for at least another year. Liberals would have a chance to win it back in 2026 or 2027, when the terms of Rebecca Bradley and Annette Ziegler, respectively, end.

If Crawford wins, conservatives will have to wait until at least 2028 for another shot at the majority. Also, the liberals could double their 1-justice majority by flipping either of the next two races.

How this court got here

Spring elections in Wisconsin can feature an eclectic mix of offices including judicial races, school boards, the state superintendent, constitutional referendums, and presidential primaries. The specific set of races on the ballot varies each year.

Even with this variation, there is a clear trend of growing participation in SCOWIS elections.

The following table shows the results of the races that elected each of the current seven justices.

table showing statistics from the past 7 SCOWIS races
  • Just 18% of adults voted in 2015, when Anne Walsh Bradley was last reelected.
  • The next SCOWIS race coincided with the 2016 presidential primary. 47% of adults participated and the court result almost perfectly matched partisan primary participation. 52% of voters participated in the GOP primary and 52% voted for the conservative judicial candidate, Rebecca Bradley.
  • In a sign of their general disarray following Trump’s first victory, liberals in Wisconsin failed to field a candidate in the 2017 SCOWIS race. Annette Ziegler was reelected by the 18% of adults who participated. The other statewide race on the ballot was for school superintendent, which the future Democratic governor Tony Evers won with 70% of the vote. To me, this is the last spring election in Wisconsin to have actually felt relatively nonpartisan.
  • 22% of adults voted in 2018, when liberal Rebecca Dallet defeated conservative Michael Screnock by 11.5 points in an open race to replace retiring conservative Michael Gableman.
  • The 2019 race was also open, after longtime liberal justice Shirley Abrahamson retired. Conservative Brian Hagedorn narrowly defeated liberal Lisa Neubauer by 0.5 points in a race with 27% participation.
  • The 2020 SCOWIS race coincided with the presidential primary, but unlike 2016, there was no Republican primary and the Democratic primary was nearly over, (Biden’s last opponent dropped out a few days later). Turnout was 35% and liberal Jill Karofsky defeated conservative Dan Kelly by about 11 points.
  • In 2023, the SCOWIS race was the most prominent contest on the statewide ballot, and its consequences were widely understood: namely, majority control of the court. Turnout was 40%, higher than in any previous spring election not corresponding to a presidential primary. Conservatives once again ran Dan Kelly. He lost to liberal candidate Janet Protasiewicz by slightly more than his defeat to Karofsky in 2020.

Just as turnout in SCOWIS races has gradually risen over the past decade, so has the degree to which partisanship shapes the outcomes. This graph, from my colleague Charles Franklin, shows the correlation between judicial votes and presidential votes in each county.

In 1978, the correlation between how a county voted for state Supreme Court and how it voted in the previous presidential election was 0.002. In 2016, it was 0.869. And in 2023, it was 0.964.

graph showing the correlation between SCOWIS and presidential races

What to expect in 2025

In April 2025, I anticipate continued high turnout. The last time a state superintendent race overlapped with a contested SCOWIS race was 2013, but the stakes in this election seem more similar to 2023, when the outcome of the race would determine majority control of the court. Also like 2023, this race features candidates who voters can easily connect to policy positions on hot topics like abortion access and redistricting.

Beyond its policy consequences for Wisconsin, this race will be a test of a leading theory about the 2024 election—that Democrats are the off-year party now. Republicans, the theory goes, win with voters who are less likely to participate in non-presidential contests. The reverse used to be true, with Republicans more often winning low turnout elections.

If Crawford wins, it will bode well for Democrats hoping to win a trifecta in Wisconsin in the 2026 midterms. A Schimel victory would suggest that conservative support is more vigorous and reliable than the Trump-specific low propensity voter narrative suggests.

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Remembering Justice David T. Prosser, Jr.

David T. Prosser, Jr., a prominent figure in Wisconsin for the last forty-five years, held many significant positions during his distinguished career of public service: Wisconsin Supreme Court Justice, Speaker of the Wisconsin Assembly, Commissioner of the Wisconsin Tax Appeals Commission, and Outagamie County District Attorney, among others. But after he passed away this month at the age of 81, those who gathered to celebrate his life remembered him not only as a hard worker and skilled jurist but also—and perhaps more importantly—as a trusted mentor, loyal friend, and devoted family member.

In my personal experience, Justice Prosser certainly deserved those accolades. I served as his law clerk during the Wisconsin Supreme Court’s 2004-2005 term. That year we worked elbow to elbow, and I observed firsthand his skill as a writer, his work ethic, and his wry wit. Upon arriving at the state capitol in early August 2004, fresh out of Marquette Law School, I was as nervous as could be. Justice Prosser immediately put me at ease, and although I made many mistakes, he never lost patience with me. That year on the Court was perhaps the greatest experience of my professional career and I often reflect on those times. I certainly would not be where I am today without him.

As with many of those whose lives he touched, Justice Prosser always had my best interests in mind. He kept in touch with me and followed my career even long after I worked for him. A few years after my clerkship had ended, I needed a letter of recommendation in a short time frame during a busy period at the court. He agreed to write on my behalf. After apologizing for the quick turnaround, I asked when he might be able to get it in the mail—to which he answered, “we’ll see.” The next evening, there was a knock at my door. There on my doorstep was Justice Prosser, with the letter in hand. He had not only written it in less than a day, but also driven two hours each way to ensure it arrived on time. I invited him in, but he declined, saying, “I’m sure you have better things to do than have dinner with me.” His humility was one of his defining features. My experience was not unique. Those gathered at his funeral told many stories of a similar nature, explaining how Justice Prosser dropped everything to help a friend or family member in need.

Justice Prosser was a great friend of Marquette Law School, often appearing at events, lectures, dinners, and the like. Many of his clerks were Marquette lawyers, and they went on to successful careers as judges and lawyers in a variety of practice settings. He was featured in the Summer 2017 edition of Marquette Lawyer magazine, highlighting how he enjoyed hiring law clerks from Marquette and how much they helped him.

The previous year, in an interview with the Wisconsin State Bar on the occasion of his retirement from the Wisconsin Supreme Court in 2016, Justice Prosser said he wanted to be remembered as an important decision-maker, an independent thinker, and a storyteller. He was certainly all those things, but also much more to those of us who had the good fortune to know him. As we continue our journeys without him, we honor the person he was and the life he led. Rest in peace, Justice Prosser. You will be missed.

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New Marquette Lawyer Magazine Spotlights the Work of Public Defenders and Provides Other Glimpses into the Law

2022 Marquette Lawyer CoverIt is nearly 60 years since the Supreme Court of the United States unanimously held, in Gideon v. Wainwright (1963), that individuals facing criminal charges are constitutionally entitled to representation by lawyers. And it has been just over 20 years since the death of Marquette Law School Dean Howard B. Eisenberg, who, early in his career, was a central figure in Wisconsin’s effort to comply with Gideon—in designing the state’s system for providing publicly funded representation for defendants unable to afford an attorney.

The cover package of the Fall 2022 issue of Marquette Lawyer magazine examines how Wisconsin’s system works today.

This means, in particular, an article profiling the work lives of five current Wisconsin public defenders. The piece includes the context of their work in a system that serves tens of thousands of defendants annually even while it is under constant stress—a system where needs outstrip available staff and resources.

Continue ReadingNew Marquette Lawyer Magazine Spotlights the Work of Public Defenders and Provides Other Glimpses into the Law