September 24, 2021


justice always right

The outlier: Brian Hagedorn explains why he breaks rank with other state Supreme Court conservatives | Local Government

Wisconsin Supreme Court Judge Brian Hagedorn poses for a portrait outside of the Wisconsin State Capitol Building in Madison on Monday, Dec. 21.

As he is skewered by the conservative politicians and pundits who helped elect him, Wisconsin Supreme Court Justice Brian Hagedorn insists he remains true to his campaign promise: to read the law as plainly written and interpret it as the writers intended.

Those legal principles, known as “textualism” and “originalism,” are hallmarks of the conservative judicial approach — one that Hagedorn ostensibly shares with three others on the state’s highest court: Chief Justice Pat Roggensack, Justice Annette Ziegler and Justice Rebecca Bradley, who were also elected with the help of Republicans.

“As best I can I’m trying to follow the law,” said Hagedorn, who legal observers say has become the court’s most powerful swing vote. He says his restrained approach aligns with the judicial philosophy he has always had.

“If I was up for reelection in a year or two, I would not vote any different,” he said in a recent interview with the Cap Times.

Yet Hagedorn has voted differently than many expected in several politically polarizing cases this term, including affirming the government’s authority to issue lockdown orders during the COVID-19 pandemic and in cases preserving Joe Biden’s presidential victory. In non-unanimous cases last term, he voted with Justice Ann Walsh Bradley, a liberal leaning justice, more than Rebecca Bradley, the bench’s most conservative jurist. (The Bradleys are not related.)

Hagedorn departs from his conservative colleagues in how he says he sees the role of the court: an inherently restrained institution that is as bound by laws and procedures already on the books as it is to the state’s Constitution.

“We are much more like the replay review in a game than we are the referee on the field,” he said. “The referees are sitting there and looking at everything that happens and ready to see a foul and ready to dive into whatever that issue might be. I don’t view our role that way.”

That is a contrast from other judicial conservatives who largely agree that the Constitution gives the court authority and a mandate to opine on legal issues it deems critical.

Hagedorn might call himself a conservative, but his reasoning does not reflect a conservative jurisprudence, said former Supreme Court Justice Dan Kelly in an interview with the Cap Times.

“The court can unquestionably exercise its original jurisdiction because it is provided for by the Constitution and the Constitution cannot be contradicted by a statute,” he said.

‘A modest role’

Before joining the court in August 2019, Hagedorn served as a Court of Appeals judge, appointed by former Gov. Scott Walker, who he also worked for as chief legal counsel. Previous to that, he worked at the Department of Justice and served as a clerk for former Justice Michael Gableman in 2010.

One area where Hagedorn stands out is in his rulings on cases submitted directly to the state Supreme Court, bypassing lower courts. These are known as “original action” cases and have become a tool of political conservatives in recent years to bring up legal issues they deem immediately deserving of clarification.

These actions, while historically and intentionally rare, have increased significantly over the last term, with more cases being petitioned and accepted by the court, often from the Wisconsin Institute for Law and Liberty, a conservative legal group.

Hagedorn has repeatedly voted, and did so again on Tuesday, to curb the court’s reach on those cases. The case was a 4-3 decision, with Hagedorn siding with the three liberal justices.

“This court is designed to be the court of last resort, not the court of first resort,” Hagedorn wrote in Tuesday’s opinion rejecting WILL’s original action petition on an expired Dane County order limiting indoor gatherings during the pandemic. “That is why we have historically been receptive to original actions only rarely. I hope we return there again.”

The other conservative justices disagreed, arguing that the court must step in now to deliver justice.

“When it is presented to us that fundamental personal liberty is suppressed by an unelected official, we must act. Waiting until the matter proceeds through a circuit court and the court of appeals will be justice denied,” wrote Roggensack in her dissent, noting that the court has recently received a “barrage” of petitions for original action. She was joined by Bradley and Ziegler.

While all justices say they are not partisans on the bench and often eschew the “conservative” and “liberal” labels ascribed to their decisions, their votes on political cases often follow the political party of those who spent millions electing them in the first place.

When it comes to the role of the court, however, Hagedorn has blurred those lines, arguing that both his votes and those of the other justices are made on the basis of how they balance the mandate of the Constitution and the requirements of current laws.

“The judiciary has an important role, but it’s a modest role. Courts are not law declarers whenever an interesting legal question comes up,” Hagedorn said. “I really don’t think every political emergency, everything that piques all the curiosity of the journalists and the Capitol press corps is necessarily a legal emergency.

“I think it’s important to allow space for other branches of government and the private parties to work things out.”

So far this term, the court has issued opinions on three original action cases. Last term it accepted five.

The court accepted no such cases in every other term dating back to 2005-06, except for one in 2014-15 and one in 2018-19, according to Alan Ball, a Marquette University history professor who tracks court activity for his SCOWstats blog.

The court’s increased receptiveness to these kinds of cases, almost always brought by conservative groups, is itself judicial activism, Ball wrote in a blog post this summer.

“It will be interesting to see whether (1) this practice continues at an unusual rate beyond the 2020 election year, and (2) litigants of a different stripe find the tactic similarly inviting, should the court acquire a liberal majority,” wrote Ball. “If either eventuality comes to pass, it will mark a significant departure from the norm.”

Hagedorn acknowledged there is “somewhat of a disagreement over the nature of what we do as a court,” when it comes to original action cases, noting that he is more restrained in how the Supreme Court should handle them.

“I think that my approach is consistent with our longstanding practice as an institution. That said, there are some unique challenges we have right now. There are times to take more original actions because I think it’s appropriate. But certainly the way our court has operated on original actions is a dramatic departure from the way we’ve operated… every year in the past.”

That being said, sometimes issues that haven’t been brought before the court Hagedorn does find worthy of its direct consideration.

Hagedorn has voted to accept original actions on pandemic-related cases this year to provide clarity, he said.

“When you have unique demonstrations of power, you’re going to have courts end up getting involved in some of this stuff because most of the stuff we’re addressing has never been addressed before,” he said.

A changing dynamic

Lester Pines, a Madison attorney who practiced law in the state for more than 40 years and has argued before the state Supreme Court numerous times, said Hagedorn has changed the dynamic of the court at an unprecedented time.

“What’s happened in the last nine years, and has been accelerating in the past three years, is the Supreme Court has taken more and more cases as original actions and that is historically unprecedented,” he said. “It reflects a desire that the majority of the court had to more rapidly control how state law was interpreted.”

The trend is troubling, Pines said, because it gives lawyers who look to the Supreme Court for guidance on the law the perception that it is influenced by who brings it a case just as much as what the case is about.

“That may not be true, it may just be coincidental, but that has been the impression and that was especially the impression at the point when Justice Kelly was on the court and after Rebecca Bradly was elected to the court,” he said.

Hagedorn’s work resembles the approach of the late Justice Pat Crooks, who was a conservative jurist, but often voted with his more liberal counterparts and practiced restraint, Pines said.

“That kind of reserve about being a Supreme Court justice is something we should all appreciate,” Pines said.

Waiting and letting things develop through the court system is beneficial to everybody because it gives the Supreme Court the benefit of other judges’ thoughts and gives litigants the opportunity to sharpen and focus arguments before they’re made at the Supreme Court.

“That’s how the process works… and that is how the law develops,” Pines said.

Just because the state’s Constitution outlines the Supreme Court’s jurisdiction does not mean that it gives it unfettered supervisory authority above and beyond all current state laws, Pines said.

“That is called activism,” he said. “It’s not activism as to result, but it’s activism in terms of getting in the middle of stuff.”

The Constitution does not say “we get the last say on everything all the time if we want to,” Pines said. “To read that to say we have the Constitutional authority to do whatever we want is an over-reading of the Constitution, in my opinion.”

“They’re not called the Supreme Court for nothing, but boy, that is not how the system is supposed to work,” he said.

Politicizing the court?

For former Justice Kelly, Hagedorn’s approach is troubling. It appears Hagedorn is trying to maintain political neutrality by considering the political implications of the court’s decisions, Kelly said, but in doing so, he actually politicizes the court.

Kelly, who lost his Supreme Court seat to Justice Jill Karofsky earlier this year, said that he may run for the court in 2023 if Roggensack retires. He is now the senior fellow in constitutional governance at the Institute for Reforming Government, a conservative advocacy group.

Although Hagedorn and Kelly voted together the most out of any pair of justices last term, Kelly said he hasn’t yet discovered any consistent logic connecting Hagedorn’s legal conclusions.

“It does appear to be entirely ad hoc,” he said.

That inconsistency was apparent in Hagedorn’s Dec. 3 opinion in one of the Trump campaign’s election suits, Kelly said, where he sided with the court’s liberal-leaning justices to send the case back to the circuit court system. In that case, Trump’s campaign asked the court to throw out votes in Milwaukee and Dane counties, arguing that the state gave wrong guidance about how ballots could be cast, causing voters to violate state law.

“Having accepted the case for review, a judicially conservative jurist would have done the job of the court by ruling. They would have ruled on the merits, without concern for the political implications,” Kelly said. “I do not think it was wise for the court to avoid deciding these questions. These are important questions of election law.

“Even if the claims don’t change the results, and I don’t think they would have changed the result of the election, I do think the Supreme Court should have ruled on them because they will be important to the conduct of future elections.”

When it comes to original actions before the court, Kelly said that if the court accepts a petition, it has an obligation to rule on the legal questions the petition includes.

“Once you accept it, absent a mistake… you really should be issuing a decision on the merits,” he said. “It’s really about doing the job of the court.”

He acknowledged that the court has taken more original actions in the last few years, but says it is due to current events and the need to address novel legal questions of statewide importance. He believes the rate at which they are accepted will decrease in the future.

Often unanimous

Even while using the same judicial approach, Hagedorn argues, judicial decisions are not black and white.

“You can be a textualist and disagree with other textualists with how they read the text. That is normal,” he said. “It’s important for people to understand that (the court is) often agreeing, and when we’re disagreeing, it’s not often along the lines the media says are our lines of decision.”

Much of the court’s work is not polarizing at all, he said. Last term, the justices voted unanimously on 42% of the cases before it.

“Most of the cases this court hears are not the ones that any of the editors of your paper care about,” Hagedorn said. “We decide lots of questions about the way lower courts handle ordinary matters and the law. I think that’s important to play out.”

Hagedorn says he remains who voters elected: a jurist who relies on the plain language of the law and Constitution, understood in the same way as intended by those who drafted them, aligned with conservative judicial principles.

He will continue to use that approach, regardless of the political reception, he said.

“Over time there will be a body of work (and) people will say that I have been a faithful textualist and a faithful originalist.”