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How Bad Will It Be If Conservatives Lose the Wisconsin Supreme Court?

Bad? Really bad? Really, really bad?

5:59 PM, Apr 4, 2011 • By JOHN MCCORMACK
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The fate of Wisconsin governor Scott Walker's Budget Repair Bill may hang in the balance Tuesday, when the state's voters head to the polls. The April 5 election, which pits conservative supreme court justice David Prosser against liberal assistant attorney general JoAnne Kloppenburg, will determine whether judicial conservatives or liberal activists have a 4-3 majority on the highest court in the state.

How Bad Will It Be If Conservatives Lose the Wisconsin Supreme Court?

In a typical year, Prosser would win another 10-year term in a walk. But 2011 is far from typical. The left and unions are angry and energized over the Budget Repair Bill that curtailed the collective bargaining power of public employee unions. And while a Prosser victory is possible, all of that energy means that Kloppenburg is favored to win tomorrow's very low turnout election--historically, only about 20 percent of the state's voters show up to the polls in springtime elections.

So what happens next if liberals win on Tuesday? Conservatives would surely suffer negative consequences, but it's not at all clear how bad the legal and electoral fallout of a Prosser loss would be. 

The ongoing legal challenge to the Republicans' collective bargaining reform concerns the process by which the law was passed--not the substance of the law itself. Democrats argue that Republicans did not follow the state's Open Meetings law, and in response Dane county judge Maryann Sumi (she's nominally nonpartisan but is elected by the county's very liberal voters), has issued a temporary restraining order halting implementation of the law. But according to the senate chief clerk, as well as applicable statutes and rules, Republicans passed the bill by the books.

If for some reason the judiciary has the will and finds a way to invalidate the law on these grounds, Republicans can always pass the bill again so long as they have control of the legislature. (Republicans could potentially lose the state senate this summer through recall elections.) And even if Prosser loses, he may still be on the high court to hear the Open Meetings case, as his current term expires July 31. 

A more serious threat is that a majority of liberal justices would find a way to rule the collective bargaining reform itself unconstitutional. "I suppose if you had a liberal enough court, you could try to argue under the state constitution, that there’s some constitutional right to collective bargaining. That would be a heckuva step," says Richard Esenberg, visiting law professor at Marquette University. Yet it's unclear that liberals would be willing to take such a big step. "I don’t know if you have that court even if Prosser loses," Esenberg continues, noting that liberal justice Patrick Crooks in particular may not be willing to go along with such a raw exercise of judicial power.

So maybe a liberal majority wouldn't be as bad as most conservatives fear. Or maybe it would be much worse.

“The bigger fear is not just that they could throw out the collective bargaining bill, they might throw out just about everything that Scott Walker’s done," says talk radio host Charlie Sykes. To get a sense of what a liberal majority could do, just take a look at the rulings from 2004 to 2008, the last stint of liberal rule. "From tort law to criminal law, the court was willing to depart from what had seemed to be settled approaches,” observed Joseph Kearney, dean of Marquette University law school.

As Richard Esenberg explains in an article, one of the court's more extraordinary activist decisions "involved an equal protection challenge to a statute capping noneconomic damages in medical malpractice personal injury cases, i.e., compensation for things like pain and suffering or loss of society and companionship, at $450,000." The court ruled that the law was "irrational" and therefore unconstitutional. After that ruling, wrote Esenberg, "it is hard to imagine the statute that could not be a target for a successful equal protection challenge."

As for the electoral implications of a Prosser loss, it's an equally murky picture. On one hand, a liberal victory certainly doesn't bode well for Republican state senators facing (potentially low turnout) recall elections this summer. On the other hand, conservatives ousted a sitting liberal Wisconsin supreme court justice in the spring 2008 and Obama went on to win the state that November by 13 points.

So whatever tomorrow's election results may be, they can, and probably will be, overinterpreted.

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