Sarah Baus of Charleston, South Carolina, left, holds a sign that reads "Keep TikTok" as she and other content creators Sallye Miley of Jackson, Mississippi, middle, and Callie Goodwin of Columbia, South Carolina, stand outside the U.S. Supreme Court Building on Jan. 10, 2025, as the court hears oral arguments on whether to overturn or delay a law that could lead to a ban of TikTok in the United States. (Photo by Andrew Harnik/Getty Images)
U.S. Supreme Court justices on Friday questioned why they should intervene to block a law forcing the sale of TikTok in nine days, saying the short-form video platform’s Chinese parent company does not enjoy First Amendment rights.
Lawyers for TikTok’s parent company, ByteDance, and a group of the platform’s users faced sharp questions from justices on both sides of the court’s ideological split about how any party other than ByteDance would have its rights restricted.
Under the bipartisan law passed by Congress and signed into law by President Joe Biden, ByteDance must divest TikTok by Jan. 19 or the wildly popular platform will be banned from app stores in the United States.
ByteDance holds the intellectual property rights to the algorithm that powers what content TikTok users see. If severed from the parent company, as required by the law, TikTok would lose access to the proprietary algorithm, which the company argued was a form of speech.
But the justices suggested only ByteDance — which, as a foreign company, they said, does not have the presumption of First Amendment rights — would be the only party directly harmed by the law.
The law targets ownership and potential control of the platform, including access to user data, by the Chinese Communist Party, Chief Justice John Roberts said. The law designates the Chinese government a foreign adversary.
“Congress doesn’t care about what’s on TikTok, they don’t care about the expression,” Roberts, a member of the court’s conservative majority, said. “That’s shown by the remedy: They’re not saying, ‘TikTok has to stop.’ They’re saying, ‘The Chinese have to stop controlling TikTok,’ so it’s not a direct burden on the expression at all.”
Lawmakers when the law was debated said the platform was dangerous because ByteDance is subject to Chinese national security laws that can compel companies to hand over data at any time.
“Are we supposed to ignore the fact that the ultimate parent is, in fact, subject to doing intelligence work for the Chinese government?” Roberts said.
Justice Elena Kagan, who was appointed by Democratic President Barack Obama, also noted the law would mainly affect ByteDance, not its U.S.-based subsidiary. Separated from its Chinese parent company, TikTok would be free to pursue its own algorithm to compete with Meta’s Instagram and other video-based social media, she said.
“The statute only says to this foreign company, ‘Divest or else,’ and leaves TikTok with the ability to do what every other actor in the United States can do, which is go find the best available algorithm,” Kagan said.
National security vs. free speech
Noel Francisco, who represented TikTok and ByteDance, argued that the law’s true aim was to stop “manipulation of content” by the Chinese government, which he said amounted to censorship in violation of the Constitution.
“The government’s real target, rather, is the speech itself, it’s fear that Americans, even if fully informed, could be persuaded by Chinese misinformation,” Francisco said. “That, however, is a decision that the First Amendment leaves to the people.”
The law burdens TikTok’s speech, Francisco said, “shutting down one of the largest speech platforms in America” that boasts about 170 million U.S. users.
He asked the court to analyze if that burden on speech was “content-based,” which he reasoned it was, noting the government’s national security argument speculated that TikTok could be used to misinform Americans.
The singling out of TikTok presents a particular problem, he said.
The law “says there’s one speaker we’re particularly concerned about, and we’re going to hammer home on that one speaker,” he said. “One of the reasons they’re targeting that speaker is because they’re worried about the future content on that platform — that it could, in the future, somehow be critical of the United States or undermine democracy.”
Jeffrey Fisher, an attorney for TikTok creators, said a law to prevent content manipulation — the government’s argument that TikTok users were vulnerable to being force-fed content approved by China — was not permitted by the First Amendment.
“That argument is that our national security is implicated if the content on TikTok is anti-democracy, undermines trust in our leaders — they use various phrases like that in their brief,” Fisher said. “That is an impermissible government interest that taints the entire act. … Once you have an impermissible motive like that, the law is unconstitutional.”
TikTok lawyers react
Lawyers for TikTok and several creators expressed confidence in their case following the arguments.
“We thought that the argument went very well, the justices are extremely engaged. They fully understand the importance of this case, not only for the American citizens of this country, but for First Amendment law, generally, the rights of everybody,” Francisco said at the National Press Club Friday afternoon.
Francisco also defended the ownership makeup of ByteDance as a company incorporated in the Cayman Islands that “is not owned by China” — though 21% is owned by a Chinese national who lives in Singapore, he said. Francisco also said TikTok’s source code for the algorithm is stored on servers in Virginia.
Three TikTok users shared stories about the livelihoods they’ve built through their presence on the platform.
Chloe Joy Sexton of Memphis, Tennessee, said TikTok allowed her to jump-start her baking business after a job loss and difficult family circumstances.
“I have now shipped thousands of cookies all over the world and even published a cookbook. As a small business without a lot of capital, I rely almost entirely on TikTok to market my products. To say TikTok changed my life is an understatement,” Sexton said.
Wisconsin taxpayers paid $1.6 million to Planned Parenthood and others who sued over a 2013 state law that was ruled an unconstitutional restriction on abortion access.
In a new attack, the Wisconsin Democratic Party blamed conservative Brad Schimel for the costs, but he didn’t become state attorney general until 2015.
Schimel faces liberal Susan Crawford in the April 1 state Supreme Court election.
The law would have required doctors who perform abortions to have admitting privileges at a hospital within 30 miles of where an abortion was done.
After Planned Parenthood sued, federal judge William Conley in Madison temporarily blocked the law, then in 2015 ruled it unconstitutional.
Schimel appealed, arguing the restriction was reasonable. A three-judge federal appeals court in Chicago upheld Conley. Schimel asked the U.S. Supreme Court to take the case, but it refused.
President-elect Donald Trump has asked the U.S. Supreme Court to pause his sentencing in a New York hush money case. Shown is the court on Oct. 9, 2024. (Photo by Jane Norman/States Newsroom)
WASHINGTON – President-elect Donald Trump asked the U.S. Supreme Court late Tuesday to pause his sentencing in a New York hush money case, arguing it cannot go forward in light of the high court’s presidential immunity ruling last summer.
Trump, who is days away from his second inauguration, is scheduled to be sentenced Friday in Manhattan on 34 felony convictions for falsifying business records. He is asking for a stay to prevent future proceedings in the case.
New York Justice Juan Merchan wrote in the sentencing order that he is not seeking jail time for Trump, but rather an “unconditional discharge” that would leave the president-elect with a criminal record in New York but avoids any serious penalties.
A jury convicted Trump in May after a weeks-long trial focusing on his bookkeeping maneuvers to cover up a $130,000 payment made by his personal lawyer ahead of the 2016 presidential election to silence a porn star about a past sexual encounter.
Trump’s request to the Supreme Court’s emergency docket asks the justices to expediently take up the questions of whether immunity extends to presidents-elect, whether the evidence admitted in the New York case violated his immunity, and whether he’s entitled to a delay in his sentencing.
“President Trump is currently engaged in the most crucial and sensitive tasks of preparing to assume the Executive Power in less than two weeks, all of which are essential to the United States’ national security and vital interests,” read a brief signed by Trump’s attorney D. John Sauer, whom Trump has nominated to be the next U.S. solicitor general.
“Forcing President Trump to prepare for a criminal sentencing in a felony case while he is preparing to lead the free world as President of the United States in less than two weeks imposes an intolerable, unconstitutional burden on him that undermines these vital national interests,” Sauer wrote.
Trump attorney Todd Blanche’s name also appeared on the request. The president-elect has chosen Blanche to be the nation’s next deputy attorney general.
Merchan has given Trump the option to appear virtually for the sentencing.
Supreme Court ruling forced delays
Merchan on Monday denied Trump’s request to that state court to cancel the sentencing hearing, saying the request recycled earlier requests from Trump’s legal team to toss the case.
“This Court has considered Defendant’s arguments in support of his motion and finds that they are for the most part, a repetition of the arguments he has raised numerous times in the past,” Merchan wrote.
A state appeals court affirmed Merchan’s decision Tuesday.
In December, Merchan rejected another Trump attempt to throw out the hush money case based on an argument that evidence had been impermissibly admitted.
The Supreme Court’s immunity ruling restricted prosecutors’ ability to investigate presidents and Trump’s team argued the evidence gathered in the case violated that restriction.
Merchan had delayed Trump’s initial sentencing date following the Supreme Court’s July decision that former presidents enjoy criminal immunity for official acts and presumptive immunity for some actions on the office’s perimeter.
The Supreme Court took up Trump’s question of presidential immunity as he fought against Justice Department special counsel Jack Smith’s case alleging interference in the 2020 election.
The court ruled, 6-3, in Trump’s favor, in a July 1 decision. Three justices appointed by Trump are part of the court’s conservative majority.
Trump is set to take the oath of office on Jan. 20.
Sen. Van Wanggaard and Rep. Patrick Snyder testified about the voter ID constitutional amendment proposal Tuesday. (Screenshot via WisEye)
Wisconsin Senate Republicans — worried about potential future actions that could weaken current laws — pushed forward a proposal Tuesday to amend the state constitution to require that voters provide photo identification when casting their ballots.
The state implemented voter ID laws fully for the first time in 2016, requiring voters to show a valid photo ID when casting their ballots. Republican lawmakers said they want to add it to the state constitution to make it harder to repeal the requirement and harder for the state Supreme Court to overrule the law. With the measure added to the constitution, it would take another constitutional amendment to remove it.
Republicans on the Senate Judiciary and Public Safety Committee passed the measure Tuesday, despite Democrats complaining that it was being rushed through, is redundant given current state law and that voter ID laws are harmful.
The Senate plans to consider the measure as a whole Wednesday morning, so it can then be sent to the Assembly in time for it to be placed on the April ballot, coinciding with the election to fill a consequential open Supreme Court seat from which Justice Ann Walsh Bradley is retiring.
“It is no secret that liberal activists and Democrats are filing court cases left and right, trying to overturn laws that have been previously found constitutional by the Wisconsin Supreme Court and/or the federal courts,” said Sen. Van Wanggaard (R-Racine), who co-authored the proposal, during the hearing.
Wanggaard noted that since 2023, when the state Supreme Court shifted from a conservative to a liberal majority, there have been challenges to the state’s 1849 law that banned abortion for a time following the overturning of Roe v. Wade and a challenge to Act 10. He said that some have suggested online that voter ID should be challenged also.
“We can be sure that a new lawsuit challenging its constitutionality is coming to the Wisconsin Supreme Court. I cannot say for certain how the Wisconsin Supreme Court would rule on voter ID laws, but I’m also not willing to risk Wisconsin’s Supreme Court unburdened by precedent,” Wanggaard said. “The only way to ensure that… our future Supreme Courts will not overturn voter ID is to enshrine this basic election integrity law in Wisconsin’s Constitution.”
Wanggaard also mentioned past comments made by the Judge Susan Crawford, who is running for a seat on the state Supreme Court and has drawn backing from Democratic and liberal interest groups. She has opposed the state’s voter ID law in the past and called such measures “draconian.”
To protect voter ID requirements, Republicans’ proposal would add language in the state constitution requiring that to vote, a qualified elector in any election must first present a photo ID issued by the state, by the federal government, by a federally recognized American Indian tribe or band, or by a college or university in Wisconsin. The amendment would require acceptable forms of ID to be specified in law, authorize lawmakers to pass laws establishing exceptions to the photo ID requirement and require that a person unable to present valid ID before voting on Election Day must be given the opportunity to cast a provisional ballot and present a valid photo ID at a later time and place.
To enact a constitutional amendment, lawmakers must pass identically worded proposals in two consecutive legislative sessions before sending it to voters, who decide whether to ratify the change. Republicans passed the proposal the first time in November 2023.
Tuesday’s hearing in the Senate Judiciary and Public Safety Committee was the first of the new legislative session, and Democratic lawmakers criticized both the measure and the last-minute scheduling of the hearing, which was noticed late Monday afternoon following lawmakers’ swearing-in ceremony.
Sen. Kelda Roys (D-Madison) said she was disappointed that Republicans were rushing to impose their “policy choices on the state of Wisconsin in perpetuity,” but have been hesitant to act after other rights, including reproductive rights and the right to privacy, have been threatened.
“When those rights are stripped away by the federal Supreme Court, this body refuses to act,” Roys said. “But when we want to hurt people and make it harder for them to exercise one of the most fundamental rights in our democracy, the right to vote, we’re very, very eager to do that.”
Wanggaard said that lawmakers have “tripped over” themselves trying to make it easy to get an ID. He noted that free ID cards for voting are accessible through the Wisconsin Department of Motor Vehicles.
“I can’t think of any other reason why they shouldn’t be able to get that identification unless they’re not lawfully eligible to begin with,” Wanggaard said.
Roys said that there can be barriers to fulfilling voter ID requirements, even if an ID itself is ostensibly free. She said those include the cost of obtaining necessary documents to get a voting ID, such as a birth certificate or proof of residence, as well as accessibility of and transportation to the DMV for an ID.
“It doesn’t really matter how many people voted or what percentage of people voted. When it comes to people’s rights, one eligible voter who is not able to exercise their right is too many,” Roys said. She pointed to the study, saying that “there is a lot of evidence that we have just in Dane and Milwaukee counties that… voters were turned away not able to vote or deterred from voting because of our restrictive voter ID laws.”
“Because they were required to have an identification card?” Wanggaard retorted. “Come on, that’s ridiculous. Go get an ID if you want to vote and that’s so important.”
Roys said she was concerned that the lawmakers were overlooking the problems that people could be facing.
“When you gloss over the actual problems that real people have, just because you didn’t experience it, I think that’s evidence of very lazy policymaking,” Roys said. “We’re not here to decide what’s the best policy… for anyone who has the privilege of sitting at this table, we are here to make policy for for a single mom who’s got a disabled kid and has limited access to transportation and lives in a rural county that doesn’t even have a DMV that’s open three days a week.”
Apart from the authors, no one at the hearing testified in favor of the proposal. Representatives from the League of Women Voters Wisconsin, Disability Rights Wisconsin, the Wisconsin Democracy Campaign and All Voting is Local testified in opposition to the resolution, with many bringing up similar concerns about accessibility for certain people, including those with disabilities, students, low-income voters
Rep. Patrick Snyder (R-Weston) noted that a voter who doesn’t have ID at the polling place can still cast a provisional ballot.
A provisional ballot is one issued to a voter who is unable to provide the poll workers with documentation as required by Wisconsin or federal law. A provision ballot can be marked at the time, but is set aside and not counted until the voter either returns to the polling place during polling hours to show a photo ID or present a valid voter ID at their clerk’s office before 4 pm on the Friday after the election.
Sen. LaTonya Johnson (D-Milwaukee) said provisional ballots can pose another barrier for voters. Returning to the polls can be difficult if someone doesn’t have reliable transportation or needs to take time off from work, she said
Johnson also said she was frustrated lawmakers decided that the measure was Republicans’ first priority for the session.
“If we want to ensure that everybody has the right to vote, we could make automatic registration at the time people turn 18, which would give everybody in this state equal opportunity to vote. We can make it automatic, and we can make voter IDs free automatically… But we’re not,” Johnson said.
“This is our No. 1 priority — on top of our kids, on top of mental health, on top of lack of need and so many other issues. Voter ID is our priority,” Johnson continued. “I think it sets a precedent in this committee about the people that we send here and what we think our constituents care about.”
The Assembly Campaigns and Elections plans to meet Wednesday morning to consider the proposal.
Reading Time: 7minutesClick here to read highlights from the story
The April 1 state Supreme Court election is expected to pit liberal Dane County Judge Susan Crawford against conservative Waukesha County Judge Brad Schimel.
If liberals win, they will retain control of the court through at least 2028. If conservatives win, it will re-empower Justice Brian Hagedorn as the critical swing vote on the court.
Under the first year of liberal control of the court, the justices decided only 14 cases, a significant drop from previous terms. Only four of those cases were split 4-3 along ideological lines.
In the previous four years since Hagedorn was elected, there were 61 4-3 decisions, and the conservative swing justice was in the majority in 50 of those cases, far more than any other justice.
Wisconsin is hurtling toward another nationally watched, pivotal state Supreme Court election.
The April 1 race has two possible outcomes: a guaranteed liberal majority until 2028 or a 3-3 split with Justice Brian Hagedorn, a conservative-leaning swing vote, again wielding outsized influence.
Longtime Justice Ann Walsh Bradley is retiring after 30 years on the high court. She has anchored the court’s liberal majority for the past two years after serving for decades without being in a clear-cut majority.
The contest seems poised to pit Susan Crawford, a Dane County judge endorsed by the court’s four current liberal members, against former Attorney General Brad Schimel, a Republican who now serves as a Waukesha County judge. If Crawford wins, liberals will lock in their majority for at least three more years, with chances to expand it in 2026 and 2027, when Justice Rebecca Bradley and Chief Justice Annette Ziegler, both conservatives, will be up for reelection.
Outside groups are already mobilizing to boost their candidates in the ostensibly nonpartisan race. In November, the Democratic Party of Wisconsin endorsed Crawford, boasting that the Madison judge “will always protect Wisconsinites’ core freedoms.” Meanwhile, conservative groups, like Americans for Prosperity Wisconsin, have come out for Schimel, saying he’s the candidate “who will restore balance and reestablish trust in our state’s highest court.”
So what will voters get from either outcome? The court’s recent terms provide clues.
Liberal majority moving slowly
The Wisconsin Supreme Court is at the center of state politics. For the past two years, Justices Rebecca Dallet, Jill Karofsky, Janet Protasiewicz and Walsh Bradley — who collectively make up the court’s liberal majority — have flexed their influence and remade Wisconsin’s political landscape.
Two cases in particular stand out. In the first, the liberal majority threw out the state’s Republican-gerrymandered voting maps, breaking a GOP vice grip on the Legislature. As a result Democrats picked up 14 seats in the Assembly and state Senate in a good Republican year nationwide. In the other, the liberal bloc expanded voting access, reversing a conservative-authored decision from just two years earlier that banned the use of unstaffed absentee ballot drop boxes.
But in other cases, the liberal justices have proceeded more cautiously than their allies would have hoped. They didn’t rule that partisan gerrymandering violated the state constitution, instead tossing the skewed maps on a technicality. The majority also declined to redraw Wisconsin’s congressional districts, despite being prompted by a Democratic-aligned law firm. They rejected another case asking them to boot Green Party presidential candidate Jill Stein from November’s ballot, and in a fourth case, they allowed a long-shot challenger to Joe Biden on the primary ballot despite objections from other Democrats.
In fact, of the court’s paltry 14 decisions last term, only four cases were settled 4-3 along ideological lines, and that includes the legislative maps and ballot drop box cases. In the third, the court’s liberal majority ruled that the Catholic Charities Bureau did not qualify for a religious exemption from contributing to Wisconsin’s unemployment insurance system. In the fourth, they ruled a Door County village could use eminent domain to seize a sliver of land from a business owner to build a sidewalk.
From left, Wisconsin Supreme Court justices Jill Karofsky, Rebecca Dallet and Ann Walsh Bradley — three of the court’s four liberal members — are shown on Sept. 7, 2023, at the Wisconsin State Capitol in Madison, Wis. Walsh Bradley is retiring at the end of this term, setting up an open seat election for April 1. If the liberal candidate wins that election, the bloc will control the court until at least 2028. (Andy Manis for Wisconsin Watch)
In other cases, they built consensus with their conservative colleagues.
In one political case, Gov. Tony Evers challenged a law giving the Legislature’s Joint Finance Committee the ability to veto certain conservation projects, arguing it was a separation of powers violation. The four liberal justices, Hagedorn and Bradley agreed.
“Maintaining the separation of powers between the branches is essential for the preservation of liberty and a government accountable to the people,” the justices declared in a Rebecca Bradley-authored opinion.
In another case, the Wisconsin Supreme Court unanimously upheld a lower court ruling rejecting an effort from an Ashland County mother to have her partner, whom she is not married to, adopt her child. In another Rebecca Bradley-authored opinion, the justices relied on a literal reading of a state statute requiring a stepparent to be married to a child’s parent in order to be eligible to adopt the child.
While constitutional claims weren’t considered, a concurring opinion from Dallet suggests the liberals could be open to broad interpretations of the Wisconsin Constitution.
The Wisconsin “constitution was written independently of the United States Constitution and we must interpret it as such, based on its own language and our state’s unique identity,” Dallet wrote.
The state constitution states: “All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness.”
That clause is at the crux of a lawsuit filed by Planned Parenthood of Wisconsin seeking affirmation the Wisconsin Constitution protects abortion access. The high court has not yet scheduled that case for oral arguments.
Hagedorn wields powerful swing vote
If Schimel triumphs on April 1, the court will revert to being conservative-leaning, with Hagedorn, who is the swingiest member of the court, wielding immense influence.
Consider the three court terms prior to the liberals taking the majority from 2020 to 2023. During those three terms, the court settled 61 cases 4-3. Hagedorn was among the four-justice majority in 50 of them, or 82% of all 4-3 cases. The next closest justice was Karofsky, who appeared in the 4-3 majority 36 times.
During that same period, Hagedorn sided with his conservative or liberal colleagues in an equal number of 4-3 cases, voting with each bloc 24 times.
His impact was even more profound in political cases: Among the 16 political cases settled 4-3 during those terms, he was in the majority in all but one case.
Justice Brian Hagedorn hears oral arguments in the Wisconsin Elections Commission v. Devin LeMahieu case at the Wisconsin State Capitol on Nov. 18, 2024, in Madison, Wis. From 2020 to 2023, Hagedorn was in the 4-3 majority 50 out of 61 times, more than any other justice. (Joe Timmerman / Wisconsin Watch)
Where Hagedorn lands in certain cases isn’t always predictable. In a lawsuit Donald Trump filed to tip the 2020 election results in his favor, Hagedorn joined his three liberal colleagues, holding that Trump took too long to file his claims.
On legislative redistricting Hagedorn initially joined his conservative colleagues in endorsing a “least-change” approach to drawing new maps after the 2020 Census, ensuring previously Republican gerrymandered maps would continue. But then he sided with his liberal colleagues in selecting maps drawn by Evers. When the U.S. Supreme Court rejected those maps because of potential Voting Rights Act violations, he returned to the conservative bloc and implemented maps drawn by the Republican-controlled Legislature.
Hagedorn’s swings also happen in non-political cases. In a criminal case from June 2023, Hagedorn, writing for his conservative colleagues, held that a Marshfield man’s Fourth Amendment rights weren’t violated during a traffic stop. In that case a police officer pulled over Quaheem Moore for speeding. After smelling “raw marijuana,” she and another officer removed him from his car and conducted a search, finding other drugs and ultimately arresting Moore. The court held the officers had probable cause to believe Moore had committed a crime, over the objections of their liberal colleagues.
A few years later, in the case of a drunk driver who wasn’t demonstrating any signs of impairment, Hagedorn joined the four liberal justices and Bradley in a 6-1 decision holding the driver’s Fourth Amendment rights were violated. The court determined the Plymouth police officer who arrested Michael Wiskowski after he fell asleep in a McDonald’s drive-thru committed an unconstitutional search when he tested his sobriety and ultimately arrested him. The court determined the officer didn’t have probable cause Wiskowski had committed a crime.
Hagedorn’s willingness to work with both ideological blocs has drawn criticism from other conservatives. After Hagedorn sided with the liberal justices in one 2020 case, Republican former state Rep. Adam Jarchow tweeted that “conservatives have been snookered” by the justice. The justice rebutted that, saying in 2020 he “will apply the law as written, without fear or favor, in every case before me.”
In April 2022, former Justice Daniel Kelly — who has twice failed to win a 10-year term after being appointed to the bench — declared Hagedorn to be “supremely unreliable in his commitment to following what the law says.”
Hagedorn is up for re-election in 2029.
Political discord empowers court
The April 1 election will represent the first time in decades — if ever — voters will have the opportunity to assess the performance of a liberal majority on the court.
A major theme ahead of the 2023 election was that a Protasiewicz victory would give liberals a majority for the first time in 15 years. But that assertion was misleading, according to Alan Ball, a Marquette University history professor who closely tracks the court.
Between the 2004-05 and 2007-08 court terms, there were three reliably conservative justices — David Prosser, Patience Roggensack and Jon Wilcox, who was replaced in 2007 by Ziegler — and three reliably liberal justices — Shirley Abrahamson, Ann Walsh Bradley and Louis Butler. Justice Patrick Crooks was a swing vote. In non-unanimous decisions during that period, he sided with the liberals 44% of the time and with the conservatives in 48% of cases, according to an analysis from Ball.
“Perhaps the Butler years came to appear liberal in retrospect because conservative dominance of the court grew so pronounced during the ensuing decade,” Ball wrote in a blog post the day after the 2023 election, pointing to the additions of Justice Michael Gableman, Rebecca Bradley and Daniel Kelly to the court.
In April, voters will decide what direction the court will shift as more and more issues land before the Wisconsin Supreme Court, giving it even more influence than the already powerful institution has had in previous terms, legal experts told Wisconsin Watch.
“The court is powerful, to a large degree, as a byproduct of the fact that the more traditionally political branches aren’t playing well with each other right now,” said Chad Oldfather, a professor at Marquette University Law School. “In America, all questions tend to become legal questions eventually, and that process probably gets accelerated in times like this.”
The state Supreme Court’s influence in recent years has been most profound on checking the power of the Legislature, University of Wisconsin Law School professor Robert Yablon said.
“Over the past decade or more, I think you can make the case that it’s the Legislature that was the most powerful branch (of government),” he told Wisconsin Watch in an interview.
But now the court has pushed back on the Legislature’s power, he said, and it may view its rulings as a way to restore balance among the three branches of government.
Wisconsin Watch is a nonprofit, nonpartisan newsroom. Subscribe to our newsletters for original stories and our Friday news roundup.
Thousands of former President Donald Trump’s supporters stormed the U.S. Capitol building following a “Stop the Steal” rally on Jan. 6, 2021 in Washington, D.C. (Photo by Spencer Platt/Getty Images)
As President-elect Donald Trump prepares to pardon the Jan. 6 rioters imprisoned for their role in the violent attack on the U.S. Capitol in 2021, one of the candidates running for a seat on the Wisconsin Supreme Court joined the campaign to rewrite the history of what happened that day, glossing over the offenses of the Jan. 6 defendants.
Speaking with right-wing radio host Vicki McKenna on her iHeart Radio podcast on Thursday, former Wisconsin Attorney General Brad Schimel, who is running in the April election for a seat on the state’s highest court, complained that the Jan. 6 defendants never got “a fair shot” in court and accused Democrats of “abusing the court system” for “political gain.”
McKenna and Schimel agreed that Democrats are guilty of “lawfare” — political warfare via the courts. But it was Schimel who specifically brought up Jan. 6.
“Another piece of the lawfare manipulation is that they utilize jurisdictions that are overwhelmingly to the left in terms of the voters — which means the jurors that you’re going to draw to hear these cases,” Schimel said. In Trump’s New York hush money trial, for example, he said, “there was no way any jury was going to rule anything other than he’s guilty of whatever you can give him, whatever charge you give them.”
“The same thing for these January 6th defendants who were all prosecuted in the Washington, D.C., district, which is overwhelmingly liberal,” Shimel continued. “This part of the manipulation is to go to districts like that. They would never take you, they would never take their prosecution in a district where you had a fair shot as a defendant.”
Republicans across the country have hopped on the bandwagon to “flip the script” on Jan. 6, as The New York Times reports in a long article detailing how Trump and his supporters “laundered the history of Jan. 6, turning a political nightmare into a political asset.” Two weeks from now, the piece points out, Trump will take the oath of office on the very spot where his followers stormed the Capitol, kicked and stomped a police officer, beat another officer with an American flag pole and broke into the building vowing to attack and kill the officials who were there to certify the election Trump lost.
After a brief period during which Republican lawmakers who hid under their desks during the attack emerged to denounce the desecration of the Capitol and the Big Lie about a stolen election, Trump made his comeback, campaigning on the idea that Jan. 6 rioters were martyrs, and former Republican critics began to change their tune.
Still, Schimel’s comments stand out. For a Supreme Court candidate to suggest that jury trials don’t work and that the whole U.S. system of justice is so politicized it can’t be trusted is deeply undermining of the very institution Schimel proposes to join.
During the McKenna show, both McKenna and Schimel engaged in some familiar partisan liberal-bashing, casting aspersions on Dane County and suggesting that the Wisconsin Supreme Court’s decisions allowing absentee ballot drop boxes to be used again and declaring the Republicans’ egregiously gerrymandered voting maps unconstitutional were merely political, not serious constitutional decisions.
Both implied that courts dominated by conservative justices are fair and impartial and that only Democrats and liberals politicize the process.
Schimel made government transparency a major talking point in his campaign to be the state’s top lawyer, but then tried to hide records of his trip to a conference hosted by the controversial Alliance Defending Freedom, which the Southern Poverty Law Center has labeled an anti-gay hate group. Schimel was there with his colleague at the state Department of Justice, attorney Micah Tseytlin, who, according to The New York Times, presented “his legal strategy to end Roe. … He proposed his idea for an abortion ban that set a limit earlier than 20 weeks to undercut Roe more openly.”
Schimel told McKenna that, unlike liberal justices on the court, “I’m going to follow the law and the Constitution. That’s something we’re missing right now.”
He criticized the Court’s liberal majority not just for their decisions but also for the cases they haven’t decided yet on the anti-union Act 10 law and on whether abortion is legal in Wisconsin. “They don’t want this issue to be resolved. They want to keep dragging it out. And that’s, that is playing political games with these cases,” he said.
It’s pretty obvious from Schimel’s political background that he is hardly the impartial, nonpartisan figure he claims to be. His insistence that the Jan. 6 defendants couldn’t get fair treatment in a Washington, D.C., courtroom is a big clue. In our increasingly toxic political atmosphere, it’s easy to forget that there are other kinds of judges, who listen to the evidence and make clear-eyed decisions based on the law, not partisanship.
Take the Washington-based federal judge who heard the case of Philip Sean Grillo, who bragged about storming the Capitol on Jan. 6. Judge Royce C. Lamberth, the Times reported, rejected Grillo’s request for a delay of sentencing on the grounds that he was about to be pardoned by Trump. Lamberth filed a court document reminding everyone of the gravity and the violence of the Capitol attack. He and his colleagues on the D.C. Circuit had presided over hundreds of trials, heard from witnesses, read hundreds of documents and watched thousands of hours of disturbing video footage.
“They told the world that the election was stolen, a claim for which no evidence ever emerged,” Lamberth wrote of the Jan. 6 insurrectionists. “They told the world that they were there to put a stop to the transfer of power, even if that meant ransacking, emptying, and desecrating our country’s most hallowed sites. Most disturbingly, they told the world that particular elected officials who were present at the Capitol that day had to be removed, hurt, or even killed.”
Lamberth’s sober judgment, and his biography, undermine Schimel’s claims about D.C. courts stacked with liberals who made a partisan target of the Jan. 6 defendants. Lamberth was appointed to the court in 1987 by President Ronald Reagan.
The future may not have been written yet, but as it unfolds in 2025, Wisconsin Watch’s statehouse team will be on the lookout for stories that expose societal problems, explore solutions, explain the decisions that affect your daily life and hold the powerful to account.
Here are four storylines we predict we’ll be following in the new year:
1. The Wisconsin Supreme Court will expand abortion rights.
There are two abortion-related cases at the Wisconsin Supreme Court right now. One questions whether or not an 1849 law has been “impliedly repealed” by subsequent abortion laws and whether it even applies to consensual abortions. The other asks the justices to declare that access to abortion is a right protected by the state constitution. I’m guessing they will.
In another recent but unrelated case, Justice Rebecca Dallet suggested the court should broadly interpret the Wisconsin Constitution. “There are several compelling reasons why we should read Article I, Section 1 (of the state constitution) as providing broader protections for individual liberties than the Fourteenth Amendment (of the U.S. constitution),” she wrote. Article I, Section 1 of the state constitution states, in part, that all “people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness.”
That’s the exact provision Planned Parenthood of Wisconsin relies on in arguing abortion access is protected by the constitution. Seems noteworthy.
— Jack Kelly
2. Democratic Gov. Tony Evers and the Republican-controlled Legislature will again strike a deal to increase funding for public education and private voucher schools, similar to the compromise they made in 2023.
Wisconsin held a record number of public school referendums this year. School districts, public officials, local taxpayers and public education advocates are speaking out, calling for increases in state aid after approving $4.4 billion in property tax hikes so their local schools can continue to cover operating costs, as well as large projects. After speaking with both Republican and Democratic lawmakers about this issue during the 2024 election cycle, many of them agreed that voters aren’t happy when they have to increase their own property taxes. Assuming Republicans are feeling the pressure to increase funding for public schools, K-12 spending could be on track to become one of the most significant budget items in 2025.
But Republican lawmakers have also stood their ground in support of school choice and have criticized state Superintendent of Public Instruction Jill Underly’s $4 billion ask for public school funding in the upcoming budget. If Republicans do agree to per-pupil funding increases, it likely won’t match the amount Evers asks for. In turn, Republicans will likely demand an increase for the voucher system as well.
— Hallie Claflin
3. The state Supreme Court election will set another spending record.
The last time Donald Trump won the presidency, Democrats were so shell-shocked they didn’t field a candidate to challenge conservative Supreme Court Justice Annette Ziegler’s re-election bid. Then in January 2018 Democrat Patty Schachtner won a special state Senate election in rural northwestern Wisconsin, signaling a Democratic wave was building. Rebecca Dallet’s Supreme Court win in April of that year affirmed the wave. It also heralded a leftward swing of the state Supreme Court culminating with Janet Protasiewicz’s win in April 2023, an election that shattered national spending records for a state Supreme Court election.
Whether Dane County Judge Susan Crawford can continue the liberal winning streak or former Attorney General Brad Schimel can channel Trump’s winning vibes is far from certain. But April’s high court contest is a must-win for Republicans, so expect the $51 million record from 2023 to fall. A Crawford win would guarantee liberal control through 2028. A Schimel win would set up another pivotal election in 2026.
— Matthew DeFour
4. Ben Wikler will be the next chair of the Democratic National Committee.
Democrats have been doing a lot of soul searching since their setbacks in November. While they haven’t reached a consensus on how to move their party forward — and they likely won’t anytime soon — they will need an effective communicator as their leader while they regroup. Wikler, who is a powerhouse fundraiser, is about as media-savvy as it comes. Whether it’s catering to a national audience on cable news, firing up the base on liberal podcasts like “Pod Save America” or speaking about local issues with local reporters like me, Wikler always stays on message. In a time when Democrats need to convince voters that they are looking out for their best interests, staying on message would be a valuable quality in a leader. That, combined with a track record of building strong party infrastructure at the state level and, most importantly, winning, makes him a standout among the declared candidates. We’ll find out his fate Feb. 1.
— Jack Kelly
Forward is a look ahead at the week in Wisconsin government and politics from the Wisconsin Watch statehouse team.
A Dane County judge who struck down the controversial Republican law known as Act 10 has put his ruling on hold, while Republican lawmakers appeal the order.
But what made this year particularly special was the introduction of the Forward newsletter. Each week the Wisconsin Watch state team produces shorter stories about what we expect to be the big news and trends in the days, weeks and months ahead. It’s something our local media partners asked for and our state team reporters delivered.
As the year winds down, we gave each state team reporter the assignment of picking a favorite story written by another member of the team (Secret Santa style!). Here were their picks:
Wisconsin Assembly Speaker Robin Vos, R-Rochester, speaks during a Republican press conference on June 8, 2023, in the Wisconsin State Capitol building to announce a tentative agreement between legislative Republicans and Gov. Tony Evers on a shared revenue bill. (Drake White-Bergey / Wisconsin Watch)
To some, radio is a source of entertainment and information from a bygone era. They’re mistaken. Hallie Claflin’s deeply reported, authoritative story illustrates the immense and continuing influence of talk radio — especially conservative talk radio — in Wisconsin politics. The rise of former Gov. Scott Walker, the toppling of a Democratic mayor in Wausau and the deaths of certain bills in the Legislature can all be tied, at least in part, to advocacy or opposition from conservative talk radio hosts. Assembly Speaker Robin Vos, the state’s most powerful Republican, makes regular appearances on broadcasts and described talk radio as being “as powerful as it’s ever been.” This story is worth your time as you look ahead to 2025.
Phoebe Petrovic’s profile of militant, anti-abortion Pastor Matthew Trewhella, her first investigation as Wisconsin’s first ProPublica local reporting network fellow, was an engaging read. But I especially liked the companion piece she wrote. It’s a reader service to do this kind of story when we do a large takeout on a person or subject unfamiliar to most readers. It also might drive readers to the main story when they learn more about why we did it. It puts the readers behind the scenes a bit and has the potential to make readers feel more connected to Wisconsin Watch.
Tom Kertscher does an amazing job with all of his fact briefs, but my favorite has to be a compilation that fact-checked presidential candidates Kamala Harris and Donald Trump right before their September debate. Over the past few races, presidential campaigns have been full of misinformation. Debates are a vital time to show the reality of candidates and their beliefs. Tom’s story made sure people could accurately judge the claims both candidates were making. I learned about many new and important topics across party lines like Trump’s for-profit college, Harris’ claim about tracking miscarriages and accurate deportation statistics.
The Waupun Correctional Institution — shown here on Oct. 27, 2023 — was not over capacity as of late July 2024. But the state prison system as a whole has long incarcerated more people than its prisons were designed to hold. (Angela Major / WPR)
Khushboo Rathore’s DataWatch report detailing that the state’s prison population was at nearly 130% capacity stood out as one of my favorite pieces this year. Not only did this short story shed light on severe deficiencies in Wisconsin’s prison system, it also presented the findings in a digestible format that helped readers understand overcrowding in prisons through striking data. It’s one thing to report that Wisconsin prisons are overwhelmed, and it’s another to have the numbers that show it. This piece has the power to reshape future conversations about statewide prison reform, which is what our work here at Wisconsin Watch is all about!
The Wisconsin Supreme Court holds its first hearing of the new term on Sept. 7, 2023, at the Wisconsin State Capitol. (Andy Manis / For Wisconsin Watch)
Jack Kelly has some of the best sourcing this newsroom has ever seen. He’s such an affable people-person, and it enables him to get coffee with anyone and everyone and build legitimate relationships that result in wild scoops, like this one. It’s a testament to his brilliance as a reporter.
The Supreme Court on Friday said it would take up a new religious rights case over whether a Catholic charitable organization must pay Wisconsin’s unemployment tax.
The justices will review a divided state Supreme Court ruling that refused to grant an exemption to the Catholic Charities Bureau, based in Superior, Wisconsin. The state court ruled that the work of Catholic Charities and four related organizations is primarily not religious, although it found that the motivation to help older, disabled and low-income people stems from Catholic teachings.
The case probably will be argued in the spring.
The Supreme Court in recent years has issued an unbroken string of decisions siding with churches and religious plaintiffs in disputes with states.
Lawyers for the Wisconsin groups argued to the court that the decision violates religious freedoms protected by the First Amendment. They also said the court should step in to resolve conflicting rulings by several top state courts on the same issue.
“Wisconsin is trying to make sure no good deed goes unpunished. Penalizing Catholic Charities for serving Catholics and non-Catholics alike is ridiculous and wrong,” Eric Rassbach, the lead lawyer for Catholic Charities at the Supreme Court, said in a statement.
Wisconsin Attorney General Joshua Kaul had urged the high court to stay out of the case, arguing that much of the groups’ funding comes from state and local governments, and the joint federal and state Medicaid program.
Employees don’t have to be Catholic and “people receiving services from these organizations receive no religious training or orientation,” Kaul wrote.
Catholic Charities has paid the unemployment tax since 1972, he wrote.
Wisconsin exempts church-controlled organizations from the tax if they are “operated primarily for religious purposes.” The state high court ruled that both the motivations and the activities have to be religious for organizations to avoid paying the tax.
A group of religious scholars, backing Catholic Charities, told the court that “the case involves governmental interference with religious liberty” that warrants the justices’ intervention.
Catholic, Islamic, Lutheran, Jewish and Mormon organizations also filed briefs in support of Catholic Charities.
At the state Supreme Court, the Freedom from Religion Foundation argued that a ruling for Catholic Charities would extend to religiously affiliated hospitals and some colleges across Wisconsin, potentially taking their employees out of the state unemployment insurance system.
Catholic Charities in Superior manages nonprofit organizations that run more than 60 programs designed to help older or disabled people, children with special needs, low-income families, and people suffering from disasters, regardless of their religion, according to court documents.
Wisconsin Watch is a nonprofit and nonpartisan newsroom. Subscribe to our newsletter to get our investigative stories and Friday news roundup.This story is published in partnership with The Associated Press.
The Supreme Court on Friday said it would take up a new religious rights case over whether a Catholic charitable organization must pay Wisconsin's employment tax.
Wisconsin Supreme Court Justice David Prosser | official portrait
The United States and Wisconsin flags will be flown at half-staff on Saturday to honor former state Supreme Court Justice David Prosser, Gov. Tony Evers announced Friday.
Prosser died on Dec. 1 after a fight with cancer. The former justice spent most of his career working in government, starting in the 1970s when he worked as an attorney for the U.S. Department of Justice and then as a staff member for U.S. Rep. Harold Froehlich (R-Appleton).
Prosser also served in the state Assembly, including terms as speaker and minority leader, before being appointed to the Supreme Court in 1998. He served on the court for 18 years and retired in 2016.
“Justice Prosser devoted his career to public service, from working for a congressman and his local community to serving as a legislator and his nearly two decades as a Wisconsin Supreme Court Justice,” Evers said in a statement. “His career was unique — he did a little bit of everything — and he spent much of his life seeking new and more impactful ways that he could make a difference in our state. Our thoughts and condolences are with his family, friends, staff, and former colleagues as they mourn his passing.”
Dane County's DAIS held an Oct. 1 rally for Domestic Violence Awareness Month. (Henry Redman | Wisconsin Examiner)
The Wisconsin Examiner’s Criminal Justice Reporting Project shines a light on incarceration, law enforcement and criminal justice issues with support from the Public Welfare Foundation
A report released Thursday from Dane County’s Domestic Abuse Intervention Services (DAIS) found that Dane County judges grant restraining orders against perpetrators of intimate partner violence in 34% of cases.
The report found that even when a judge grants a restraining order, it is often not for the amount of time requested by the victim — despite state law requiring that the order be for the length of time requested by the petitioner.
State law allows judges to impose restraining orders on domestic abusers for up to four years in most cases, and up to 10 years when it can be proven the abuser is especially dangerous. But in a handful of cases, the report found, a judge granted restraining orders for only two years to allow a “cooling off period” for the people involved despite “serious lethality concerns testified to in the hearing.”
Kianna Hanson, the legal advocacy program manager at DAIS, said at an event announcing the report’s findings Thursday morning that the “cooling off period” is a myth and that judges should follow the law.
“The fallacy of the cooling off period, which some judges have cited as a reason for choosing to grant an injunction from less time than the petitioner has requested, which in domestic abuse injunction goes against [state law],” Hanson said. “This mythology around domestic abuse cases is harmful because it suggests that domestic abuse could be the result of anger or not being able to control one’s emotion, when in reality, domestic violence is most often a conscious choice that is rooted in gaining power and control over one’s partner.”
The report was completed by a team from DAIS and other community organizations to observe more than 800 hearings in Dane County Circuit Court from April 2023 to April 2024. At the Thursday morning event, Wisconsin Supreme Court Justice Jill Karofsky said the report was a step toward trying to make Wisconsin’s legal system a better place for everyone involved in it.
“What if the legal system were different? What if the legal system were the vehicle for healing and for change?” she said. “What if people left the legal system in a better place than where they entered, and I mean all of us. I mean judges and attorneys and witnesses and court reporters and victims and defendants and plaintiffs and bailiffs and advocates. What if we left work every day feeling energized and satiated and nourished instead of stressed out, depressed and exhausted, and what if the legal system itself helped us get to a better place?”
The report found that in the vast majority of injunction hearings, 87%, the victim seeking the restraining order was there pro se, meaning they were representing themself. Just 15% of petitioners had support in court from organizations such as DAIS, who have employees who serve as court advocates to help victims navigate the legal process (but aren’t attorneys and can’t provide legal advice).
Representation from an attorney or support from a legal advocate vastly increased the chances of a restraining order being granted, the court found. When acting on their own, petitioners had injunctions granted in 29% of cases but when assisted by an attorney or advocate, injunctions were granted 62% of the time — meaning representation increased the chances of successfully obtaining a restraining order by 114%.
Hanson told the Wisconsin Examiner after Thursday’s event that DAIS would be able to handle more restraining order cases under its legal advocacy program, saying that because the issuance of a restraining order can be a life-or-death decision for an abuse victim, the organization would prioritize those cases.
Domestic abuse organizations across the state face critical funding pressures after a steep decline in federal money they receive hit this fall. Advocates have warned those funding cuts could strain resources for organizations like DAIS across the state.
The report also notes a number of comments court observers saw judges make during hearings in these cases that were interpreted as minimizing abuse, treating people of color differently and misstating the law.
One judge, according to the report, denied an injunction over harassment, stating that he was doing so “because unwanted touching, kissing, or harassing text messages demanding explicit photos is not sexual assault,” despite state law saying it is.
The judges are quoted anonymously in the report but DAIS staff said at Thursday’s event that in the organization’s next version of the report, it will attribute the quotes.
Dane County Judge Julie Genovese, in attendance at the event, said during a question and answer period that she doesn’t think naming the judges will be helpful — even though the comments were made on the record in open court.
“I’d like to say on behalf of the judges, that it would be a very helpful thing for somebody to come and present to the judges at a judge’s meeting, rather than we’re going to just identify you on our next report, to come to the judges discuss with them what are the issues, offer the training or the resources, rather than just do it in this form,” Genovese said.
Act 10, which effectively ended collective bargaining for most Wisconsin public employee unions, has saved taxpayers billions of dollars.
The 2011 law could be reviewed by the Wisconsin Supreme Court because of a recent judge’s ruling.
The law achieved savings mainly by shifting costs for pension and health benefits for public employees to the employees.
The nonpartisan Wisconsin Policy Forum found in 2020 that state and local governments saved $5 billion from 2011 to 2017 in pension costs alone.
PolitiFact Wisconsin reported in 2014 that public employers saved over $3 billion on pensions and health insurance.
Getting rid of Act 10’s pension, health insurance and salary limits would raise annual school district costs $1.6 billion and local government costs $480 million, the conservative Wisconsin Institute for Law & Liberty estimated in September.
However, the recent court ruling doesn’t invalidate Act 10’s higher employee contribution requirements, said attorney Jeffrey Mandell, who represents unions in the pending case.
This fact brief is responsive to conversations such as this one.
Former Dane County Judge James Troupis appears in court on Dec. 12. He faces felony forgery charges for his role in developing the 2020 false elector scheme to overturn the election results for Donald Trump. (Screenshot | WisEye)
Two former attorneys and a campaign staff member for President-elect Donald Trump made their initial appearance in Dane County Circuit Court Thursday in the felony cases against them for their roles in hatching the scheme to cast false Electoral College votes for Trump following the 2020 election.
Of the three men charged, Michael Roman, James Troupis and Kenneth Chesebro, only Troupis appeared in court in person. The other two appeared over the phone. All three were granted signature bonds with the condition that they not have any contact with the ten Wisconsin Republicans who cast Electoral College votes for Trump in 2020.
Multiple recounts, lawsuits and investigations have found that Trump lost the 2020 election in Wisconsin. Still, after that election, the three men worked to develop the plan that involved false slates of electors casting votes for Trump in Wisconsin and other states. The false slates of electors provided a pretext for the Jan. 6, 2021 attack on the U.S. Capitol.
After the hearing, Troupis called the charges “lawfare in all its despicable forms,” saying Wisconsin Attorney General Josh Kaul has “doubled down on a vicious strategy to destroy our very faith in the system of justice by using the courts for his own personal political game.”
On Wednesday, the voting rights focused firm Law Forward filed an ethics complaint against Troupis, a former Dane County Circuit Court judge, with the state Office of Lawyer Regulation. The grievance alleges that Troupis’ role in developing the fake elector scheme subverted the will of the people and violated state rules for attorney conduct.
“Our democracy depends on attorneys adhering to their ethical obligations,” Jeff Mandell, President and General Counsel of Law Forward, said in a statement. “Troupis violated those obligations by advancing falsehoods, enabling fraud, and undermining the rule of law. This grievance seeks to hold him accountable and ensure that such abuses of the legal profession are never repeated.”
The three men are next scheduled to appear in court on Jan. 28.
The U.S. Supreme Court on Monday rejected an appeal from Wisconsin parents who wanted to challenge a school district’s guidance for supporting transgender students.
The justices, acting in a case from Eau Claire, left in place an appellate ruling dismissing the parents’ lawsuit.
Parents with children in Eau Claire public schools argued in a lawsuit that the school district’s policy violates constitutional protections for parental rights and religious freedom.
Sixteen Republican-led states had urged the court to take up the parents’ case.
Lower courts had found that the parents lacked the legal right, or standing. Among other reasons, the courts said no parent presented evidence that the policy affected them or their children.
A unanimous three-judge panel of the 7th U.S. Circuit Court of Appeals included two judges Republican Donald Trump appointed during his first term.
But Alito described the case as presenting “a question of great and growing national importance,” whether public school districts violate parents’ rights when they encourage students to transition or assist in the process without parental consent or knowledge.
“Administrative Guidance for Gender Identity Support” encourages transgender students to reach out to staff members with concerns and instructs employees to be careful who they talk to about a student’s gender identity, since not all students are “out” to their families.
Wisconsin Watch is a nonprofit and nonpartisan newsroom. Subscribe to our newsletter to get our investigative stories and Friday news roundup.This story is published in partnership with The Associated Press.
Wisconsin Supreme Court Justice Rebecca Bradley has been selected to receive an award from the Milwaukee chapter of the Federalist Society for her “work on behalf of” the right-wing legal group’s “legal principles.”
The chapter’s website shows that Bradley received the Judge Rudolph T. Randa Award at an event Thursday afternoon in Milwaukee.
“Each year, the Milwaukee Lawyers Chapter of the Federalist Society presents the Judge Rudolph T. Randa Award to an individual whose work on behalf of the rule of law and the legal principles our Society exists to uphold is as unquestioned as it is longstanding,” the website states.
Bradley is also on the chapter’s board of advisors. The Federalist Society aims to promote right-wing legal ideology and has successfully worked to get its members installed as judges on the local, state and federal levels.
Over the last year, Bradley has been one of the Wisconsin Supreme Court’s most outspoken critics of the body’s liberal majority — regularly accusing the four left-leaning judges of acting on behalf of the Democratic Party.
“It’s clear that Justice Rebecca Bradley is receiving this award because the Federalist Society believes she uses her position on court to advance their political and policy agenda instead of working for us,” Lucy Ripp, Communications Director of A Better Wisconsin Together, said.
Wisconsin’s state Supreme Court election next spring already had high stakes, with majority control on the line. But a judge’s ruling this week restoring collective bargaining rights to roughly 200,000 teachers and other public workers in the state further intensifies the contest.
The liberal-controlled court has already delivered a major win to Democrats by striking down Republican-drawn legislative maps. Pending cases backed by liberals seek to protect abortion access in the state and kneecap Republican attempts to oust the state’s nonpartisan elections leader.
Now, the court could be poised to notch another seismic win for Democrats, public teachers and government workers by restoring the collective bargaining rights they lost 13 years ago in a fight that decimated unions, sparked massive protests and emboldened Republicans who later restricted rights for private-sector unions.
Liberals gained the majority on the Wisconsin Supreme Court for the first time in 15 years following a 2023 election that had deep involvement from the Republican and Democratic parties, broke turnout records and shattered the national record for spending on a court race.
Abortion took center stage in that race. Now, it appears that union rights could be a major issue in the 2025 contest to replace a retiring liberal justice.
“You can make the argument that this race is more important than the race for the Legislature or the governor,” said Rick Esenberg, president of the conservative Wisconsin Institute for Law and Liberty, said Wednesday. “I don’t think you can understate the importance of this race to the voters, no matter which side of the political divide you are on.”
The April 1 election will pit Brad Schimel, a Republican judge who supports President-elect Donald Trump and served as Wisconsin’s attorney general from 2015 until 2019, against Susan Crawford, a liberal judge whose former law firm represented teachers in a lawsuit that sought to overturn the anti-collective bargaining law.
The Wisconsin Supreme Court, then controlled by conservatives, upheld the law known as Act 10 in 2014.
Crawford’s past attempt to overturn Act 10 raises questions about whether she could rule objectively on it, Schimel said in a statement to The Associated Press. His campaign on Monday branded Crawford as a “radical” and said she would be a “pawn” of the Democratic Party if elected.
Schimel, when he was attorney general, said he would defend Act 10 and opposed having its restrictions applied to police and firefighter unions, which were exempt from the law.
Treating public safety workers differently from others makes the law unconstitutional, Dane County Circuit Judge Jacob Frost ruled Monday. He sided with teachers and restored collective bargaining rights, a decision affecting about 200,000 workers in the state, according to the Wisconsin Policy Forum.
The Republican-controlled Legislature promptly appealed.
Crawford’s former law firm is not involved in the current case.
Crawford didn’t directly address a question from the AP about whether she would recuse herself from any case involving Act 10. But her campaign spokesperson, Sam Roecker, said Crawford “will make a decision at that time about whether she can be fair and impartial, based on the particular facts and parties.”
Roecker said Schimel’s immediate condemnation of the court’s ruling Monday “shows he has already prejudged this case.” Schimel didn’t respond to a request for comment on whether he would recuse himself from any case involving Act 10.
The appeal of Monday’s ruling striking down Act 10 would typically first be heard by a state appeals court — a process that could take months. But the public workers who sued could ask the state Supreme Court to take the case directly, which would make it possible for a ruling before the new justice is seated in August.
Crawford has been endorsed by the state teachers union, which was gutted after Act 10 became law, as well as the Wisconsin Democratic Party and all four of the current liberal justices on the court. In addition to suing to overturn the anti-union law, Crawford also previously represented Planned Parenthood in a case to expand Wisconsin abortion access.
Christina Brey, spokesperson for the statewide teachers union, the Wisconsin Education Association Council, said she couldn’t speculate about whether Crawford would hear a case challenging Act 10.
Brey said Crawford won the union’s endorsement because “we believe she is going to be the most dedicated and most impartial, constitution-believing judge to put on the Supreme Court.”
Schimel is endorsed by Republican Sen. Ron Johnson, all five of the state’s Republican congressmen, the conservative group Americans for Prosperity, and a host of law enforcement agencies and officials, including 50 county sheriffs.
If Crawford wins, liberal control of the court would be locked up until at least 2028, the next time a liberal justice is up for election.
Candidates have until Jan. 1 to enter the April 1 race. The winner will serve a 10-year term.
Wisconsin Watch is a nonprofit and nonpartisan newsroom. Subscribe to our newsletter to get our investigative stories and Friday news roundup.This story is published in partnership with The Associated Press.
The Wisconsin Supreme Court will decide whether Republican lawmakers violated the state Constitution by temporarily blocking an agency's conversion therapy ban over the past four years.
Transgender rights opponents and a supporter rally outside of the U.S. Supreme Court as the justices hear arguments in a case on transgender health rights on December 4, 2024 in Washington, DC. The Supreme Court is hearing arguments in US v. Skrmetti, a case about Tennessee's law banning gender-affirming care for minors and if it violates the Constitution’s equal protection guarantee. (Photo by Kevin Dietsch/Getty Images)
A conservative U.S. Supreme Court appeared ready to side with Tennessee Wednesday in upholding the state’s ban on gender affirming care for minors, a case likely to set legal precedent on equal protection for transgender children.
A decision from the court isn’t expected until June 2025, but Republican-appointed justices such as Samuel Alito, Clarence Thomas and Brett Kavanaugh tipped their hands on how they would rule during three hours of oral arguments in Washington, D.C.
They were countered by the court’s liberal justices, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, who are outnumbered 6-3.
Conservative justices appeared leery of creating a protected class, but Jackson, for instance, indicated the law clearly discriminates on the basis of sex. Jackson used the Loving v. Virginia case that allowed racially integrated marriages to show that similar arguments were made against those types of unions some 50 years ago.
Three families with transgender children and Memphis Dr. Susan Lacy sued the state, then the federal government intervened on behalf of the plaintiffs who are challenging Tennessee’s ban on puberty blockers and hormone therapy to allow minors to make a sex transition.
Thomas, for instance, asked the federal government’s attorney why the case would be a matter of age classification, as opposed to sex. Alito and Kavanaugh raised questions about the United Kingdom and European countries dialing back support for gender affirming care.
In addition, Roberts said the court is “not the best situated to address issues” such as gender affirming care and should allow legislatures to make those types of decisions.
LGBTQ+ advocates rally outside the U.S. Supreme Court on Wednesday as the court heard arguments in a Tennessee case banning gender affirming care for minors. (Photo: Brian Sullivan)
Tennessee lawmakers passed Senate Bill 1 in 2023 following an uproar over reports by a right-wing radio commentator that Vanderbilt University Medical Center was performing surgeries and administering puberty blockers and hormone therapy to children. Vanderbilt said it wasn’t performing surgical procedures when the issue erupted.
Gov. Bill Lee says Tennessee has a “compelling interest in encouraging minors to appreciate their sex, particularly as they undergo puberty,” and in blocking treatments “that might encourage minors to become disdainful of their sex.
The American Civil Liberties Union, ACLU Tennessee, Lambda Legal and Akin Gump Strauss Hauer & Feld filed suit against Tennessee, claiming the equal protection rights of transgender children were violated. The law was struck down in U.S. District Court, but that decision was overturned by the 6th Circuit Court of Appeals, and the U.S. Supreme Court agreed to hear the case.
Tennessee’s legal strategy is based on the premise that the 2023 law prohibiting puberty blockers and hormone therapy for young people is based on “medical purposes,” not a child’s sex.
In contrast, attorneys for the plaintiffs said Senate Bill 1 created a blanket ban on gender affirming care based entirely on a minor’s desire to change sexes. They pointed out children suffering from gender dysphoria could be prone to suicide if they don’t receive puberty blockers or hormone treatments that enable them to start the transition toward a sex different from their birth sex.
Attorneys for the plaintiffs say the Supreme Court should give the matter “heightened scrutiny,” or a closer examination, because it involves discrimination against transgender children rather than review it under standard “rational basis,” which is typically used when a law doesn’t involve a constitutional right.
Elizabeth Prelogar, solicitor general for the Department of Justice, told the justices the state of West Virginia enacted a law that set up requirements for undergoing gender affirming care, whereas Tennessee passed a blanket ban affecting children seeking to transition to another sex.
Justice Kagan made the point that the law is based on “transgender status” and not sex alone. She also said Tennessee appears to want to “conform to sex stereotypes.”
Kavanaugh stuck with the argument that some transgender people want to switch back to their original sex when they get older but are physically unable to make the change.
“How do we as a court choose which set of risks is more serious when we constitutionalize?” Kavanaugh said.
Tennessee Lookout is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Tennessee Lookout maintains editorial independence. Contact Editor Holly McCall for questions: info@tennesseelookout.com. Follow Tennessee Lookout on Facebook and X.
Login
