The liberal majority on the Wisconsin Supreme Court on Friday agreed to hear a case challenging the state’s Republican-drawn legislative districts, a decision that could spur impeachment proceedings against a newly elected justice, Janet Protasiewicz, who refused to recuse herself from the case.
The decision to accept the case — known as an original action because it means the case will bypass Wisconsin’s trial and appeals courts — comes over the objections of at least two of the court’s three conservative justices and the state’s leading Republicans, who have threatened to impeach Justice Protasiewicz before she can rule on it.
“Recusal decisions are controlled by the law,” Justice Protasiewicz wrote in her 47-page decision to remain on the case. “They are not a matter of personal preference. If precedent requires it, I must recuse. But if precedent does not warrant recusal, my oath binds me to participate.”
The court’s decision to accept the case will force Republicans to make a decision soon about whether to proceed with an impeachment of Justice Protasiewicz, who won a commanding victory in April and was seated on the bench on Aug. 1. The Republican-controlled State Assembly is set to convene on Tuesday.
The court’s conservative members reacted with fury to their liberal colleagues’ decision to accept the maps case.
“Four members of this court have chosen to chip away at the public’s faith in the judiciary as an independent, impartial institution, undermine foundational judicial principles such as stare decisis, and cast a hyperpartisan shadow of judicial bias over the decisions of this court,” wrote Justice Annette Ziegler, one of the court’s three conservative justices. “Such shortsighted behavior demonstrates the court majority’s sheer will to expedite a preconceived outcome for a particular constituency. This abandonment of their judicial oath is disappointing.”
Justice Protasiewicz became a target of Republican impeachment efforts after she called the maps “rigged” during her campaign and declared herself a supporter of abortion rights. Republicans have said those statements violated Wisconsin’s judicial ethics codes, and they have demanded that she recuse herself from the maps case.
The Wisconsin Assembly, where Republicans hold a 64-to-35 advantage, needs just a simple majority to impeach Justice Protasiewicz. Once impeached, she would be forbidden to act on cases until a State Senate trial. Conviction and removal by the State Senate requires a two-thirds vote — exactly the majority that Republicans hold in the chamber.
Time is of the essence for both Republicans and Democrats, who have long grappled over the state’s legislative maps. The current maps created a near supermajority for Republicans in the State Legislature, even though Democrats had won a vast majority of statewide elections since 2018. Republicans feel compelled to stop Justice Protasiewicz before she can invalidate the maps that have cemented their control of the Legislature, while Democrats are hoping for new maps to be installed in time for the 2024 elections.
Justice Protasiewicz had not spoken publicly about the case, but during her campaign this spring she committed to recusing herself only from cases brought by the Democratic Party of Wisconsin, which spent $10 million backing her and last month rolled out a $4 million effort to pressure Republicans not to impeach her. Only one Republican member of the Assembly has stated publicly that he opposes removing Justice Protasiewicz.
Barry C. Burden, a professor of political science at the University of Wisconsin-Madison, said the latest fights over the state’s Supreme Court made clear that the line that once separated the justices from partisan politics had “completely disintegrated.”
“The kind of bare-knuckles politics that has defined the state for the last 15 years has now bled its way into every aspect of state political life, including the judicial branch,” he said.
