Wisconsin's 2023 Supreme Court candidates and Brian Hagedorn

Wisconsin Supreme Court Justice Brian Hagedorn has been a swing vote in several major cases — 2023 candidates Jennifer Dorow, Daniel Kelly, Everett Mitchell and Janet Protasiewicz weigh his decisions.

By Zac Schultz | Here & Now

February 16, 2023

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For the past two years, every major decision by the Wisconsin Supreme Court has been made by one man: Justice Brian Hagedorn.

Elected as a conservative, Hagedorn most often gives them a 4-3 advantage. But sometimes he sides with the three liberals, infuriating his conservative colleagues.

Of the four candidates running for the Wisconsin Supreme Court in 2023, former Justice Daniel Kelly is the most outspoken about Hagedorn.

“I think it’s no secret that he and I disagreed on some very significant constitutional questions,” said Kelly. “It’s not personal opinion. It’s not preferences. It’s this is what the law requires. And so we simply disagree on a profound level, on some significant issues.”

Kelly and Hagedorn were on the court together for one year — before Kelly lost his re-election bid in 2020.

They were on opposite sides of Wisconsin Legislature v. Palm, the case that overturned Gov. Tony Evers’ ability to issue “safer at home” orders to battle the COVID-19 pandemic.

After Kelly lost, Hagedorn’s prominence increased, and he sided with the liberal justices on the court in a decision to keep the Green Party presidential candidate off the ballot in 2020 and in a decision to not go forward with multiple cases where Donald Trump tried to overturn the election by throwing out absentee ballots in Dane and Milwaukee counties.

“Justice Hagedorn was elected by the people of Wisconsin,” Kelly said. “And when his term is up, if he chooses to run again, he will need to make a report of his work to the people of Wisconsin.”

Hagedorn declined to comment for this story. His term on the Supreme Court is not over until 2029.

Brian Hagedorn, wearing judicial robes, looks at a paper document and speaks while sitting in a high-backed leather and wood chair behind a dais with a nameplate reading "J. Hagedorn" in a room with marble walls and pillars.

Justice Brian Hagedorn speaks during oral arguments for a case before the Wisconsin Supreme Court on Sept. 28, 2022. Elected in 2019 with backing from Republicans and other conservative supporters, Hagedorn has been a swing vote in multiple high-profile and controversial cases. (Credit: PBS Wisconsin)

But that hasn’t stopped Kelly from using Hagedorn as a foil, telling voters they shouldn’t vote for fellow conservative candidate Jennifer Dorow — because she could be another Hagedorn.

“We should not have to elect a candidate to find out whether they really, truly are a constitutional conservative. That was the position we were in with Brian Hagedorn and it didn’t work out so well, said Kelly in a Jan. 13, 2023 interview on a WSAU talk radio show.

Dorow had little to say about Hagedorn, except to note whoever wins the 2023 election will be serving with him on the court.

“You know, I can’t speak for him — right — or his methodology,” Dorow said. “What I can do is focus on what I will bring to the court, and that is an unwavering commitment to be fair and impartial, to apply the law to the facts of each case. To bring collegiality to the court as well. To work with all of the justices on the bench as we wrestle with really important issues.”

The liberal candidates Janet Protasiewicz and Everett Mitchell also don’t want to be directly compared to Hagedorn — because he’s a conservative — but they do like his image as independent.

“When Dan Kelly called out Brian Hagedorn as ‘supremely unreliable’ because he voted against the bloc and exerted his independent thought — and he’s labeled as ‘supremely unreliable,’ like it’s a bad thing,” Protasiewicz said.

“So I see him doing what judges and justices hopefully do — not become so rigid in an ideology that you can’t even listen to the facts or be moved by the facts that are in front of you. I think that is where we all should aspire to be able to do, is move inside that space, because the facts can sometimes pull you in those different directions,” Mitchell said.

If Protasiewicz or Mitchell win, they would create a liberal majority. Could voters expect them to occasionally frustrate their supporters by showing independence?

“I think the idea that you can anticipate where people rule is why our courts lose legitimacy. It should always have some, again, that curiosity of the facts that are being brought before you, not people saying, well, I know exactly what they would do and exactly how to frame this case based on who’s there in that seat,” said Mitchell.

“Being independent is what everybody should do. You shouldn’t be able to predetermine what a Supreme Court is going to do. They should be following the law, upholding the Constitution,” said Protasiewicz. “Then you hear, ‘Look at this — on several occasions, Justice Hagedorn didn’t do what we thought he should do!’ Now he’s ‘supremely unreliable’? Maybe he should have been called independent and thoughtful, right?”

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