Frederica Freyberg:

In election news, 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. “Here & Now” senior political reporter Zac Schultz tell us how Hagedorn’s independent streak on the court has become a factor in the primary election coming up next Tuesday, February 21.

Daniel Kelly:

I think it’s no secret he and I disagreed on some very significant constitutional questions.

Zac Schultz:

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

Daniel Kelly:

It’s not personal opinion. It’s not preferences. It’s this is what the law requires. So we simply disagree on a profound level on some significant issues.

Zac Schultz:

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 the Wisconsin Legislature versus Palm, the case that overturn Governor 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 liberals on the court in decisions to keep the Green Party presidential candidate off the ballot in 2020 and 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.

Daniel Kelly:

Justice Hagedorn was elected by the people of Wisconsin 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.

Zac Schultz:

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

Daniel Kelly:

You should not have to elect a candidate to find out whether or not 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.

Zac Schultz:

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

Jennifer Dorow:

You know, I can’t speak for him, right, or his methodology. 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.

Zac Schultz:

The two liberal candidates also don’t want to be directly compared to Hagedorn because he’s a conservative but they do like his image as independent.

Janet Protasiewicz:

When Dan Kelly called out Brian Hagedorn as “supremely unreliable” because he voted against the block and exerted his independent thought and he’s labelled as supremely unreliable… like it’s a bad thing?

Everett Mitchell:

I see him doing what judges and justices hopefully do. That’s not become so rigid in ideology you can’t even listen to the facts or be moved by the facts that are in front of you. I think that is what 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.

Zac Schultz:

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

Everett Mitchell:

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

Janet Protasiewicz:

Being independent is what everybody should do. You shouldn’t be able to predetermine what a Supreme Court’s going to do. They should be following the law, upholding the Constitution and 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?

Zac Schultz:

Reporting from Madison, I’m Zac Schultz for “Here & Now.”