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.

Continue ReadingGet ready for 6 years of Supreme Court races

How Much of the Republican Assembly Victory was Thanks to Incumbency?

Democratic state assembly candidates were less popular than either Kamala Harris or Tammy Baldwin this past November. Of the 99 Assembly seats, Baldwin won 50, Harris 49, and actual Democratic candidates 45.

This, in itself, was not a surprise. We know that incumbents usually enjoy a slight popularity boost, and there are more incumbent Republicans than Democrats. The 2024 assembly races featured 57 incumbent Republicans and 27 Democrats in contested races.

But does incumbency advantage explain all of the Republican assembly majority? A careful accounting of the evidence suggests not.

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Measuring two kinds of incumbency advantage

The 2024 election is the first to use maps drawn by Democratic Governor Tony Evers, rather than previous maps drawn by Republican legislators. When the new state assembly maps were first released, I estimated that the 2022 assembly elections would’ve resulted in 46 Democratic seats, had the election taken place under the new maps. This, despite the fact that Governor Evers won reelection in that year by 3 percentage points.

Incumbency advantage comes from at least two sources. In places where they’ve run before, incumbents likely enjoy higher name recognition than an opponent. Apart from that, they might still run better campaigns simply by dint of greater experience.

Redistricting offers a unique opportunity to decompose these two sources of incumbent strength. Most incumbents ran in new districts which only partially overlapped with their previous seat. The benefits of name recognition should primarily exist just in those overlapping areas, while the benefits of experience should appear everywhere.

To measure this, I created a statistical model predicting the assembly vote in each ward based on the following variables:

Continue ReadingHow Much of the Republican Assembly Victory was Thanks to Incumbency?

Grapes of Roth, Part I-B: Counting to 21 Similarities

[This is the third in series of posts summarizing my new article, “The Grapes of Roth.”]
Introduction
Part I-A: Duck-Rabbits in Equity

In yesterday’s post, I summarized how infringement determinations were made in the age of equity, in the early to mid-twentieth century: judges compared the plaintiff’s and defendant’s works as an ordinary observer would, then mentally pared down the similarities by considering only protected expression. Based on that filtered comparison, the judge would arrive at a conclusion about whether the protected similarities were substantial enough to warrant an infringement determination.

That method put a lot of faith in the ability of federal judges to exercise aesthetic, legal, and policy discretion to reliably arrive at just outcomes involving infringement. But by the early 1960s, that faith was waning. Several factors were behind this shift. The first was simply generational: the active bench of the Second Circuit, the leading copyright appellate court in the mid-twentieth century, experienced a nearly complete turnover between 1951 and 1957, and by 1964, all nine active judges had been appointed within the last ten years. Learned Hand and the cadre of judges who served with him–judges who were used to equitable decision-making–were gone, replaced by judges such as Edward Lumbard, Henry Friendly, Irving Kaufman, and Thurgood Marshall. This new generation of judges had a very different conception of the judicial role, one considerably more wary of open exercises of judicial discretion.

There were several reasons for this, many of which are briefly elaborated in my article, and a full account of which could occupy its own article or even a book. I’ll just briefly list them here. Legal realism and Lochner–era judicial review had desanctified the judicial decisionmaking process in the eyes of many. The rise of the administrative state and an explosion of statutes moved the conceptual center of the law away from courts, and away from the common law, and placed it instead with legislatures and statutory text. The Erie decision reinforced that view by locating law in the command of a government, not a transcendent body of principles. Equity was fading as a familiar decision-making procedure. The federal courts and federal caseload exploded, putting pressure on lower courts to better explain their decisions for more efficient review.

The result was a revolution in legal ideology, the foundational axioms of which were encapsulated by a theory that briefly flourished at Harvard Law School in the 1950s and ’60s, and was laid out in a set of teaching materials titled “The Legal Process.” Legal Process theory had two significant components to it. First was the principle of “institutional settlement,” meaning the way in which different sorts of decisions were parceled out to different institutional players. With the rise of statutes and regulations, the content of the law was no longer mostly in the hands of judges, but rather to a large degree was the responsibility of legislatures and administrative agencies. Once it was settled who had primary authority over the content of some provision of law, that institutions decision should govern the other players–including courts. (For more on how “institutional settlement” may have influenced copyright law, see Shyam Balganesh’s article Copyright as Legal Process.)

The second component was the principle of “reasoned elaboration.” Judicial decisions are legitimate, according to this principle, only because they are explained in a series of steps that “build the bridge between the authorities they cite and the results they decree.” The 1960s witnessed a surge of multi-step tests and multi-factor balancing frameworks. Judge Hand’s statement in Sinram v. Pennsylvania R.R. that ultimately every judicial decision rests on fiat was cast aside.

Continue ReadingGrapes of Roth, Part I-B: Counting to 21 Similarities