As I predicted earlier, liberals appear to be taking over the Wisconsin Supreme Court. Justice David Prosser, a one-time GOP legislator, trails liberal lawyer Joanne Kloppenburg by 234 votes out of 1.5 million cast. Currently, three of the seven justices on the Wisconsin Supreme Court are hard-core liberals. Prosser’s loss would switch control of the Wisconsin Supreme Court to a hard-left majority that will now have the power to overturn many criminal convictions, and to strike down limits on lawsuit abuse and collective bargaining for state employees.
Prosser trails because liberals made the election a referendum about Wisconsin’s recently passed law limiting collective bargaining in government agencies, and conservatives pundits misguidedly went along with this framing of the race, rather than explaining how a liberal victory would harm crime victims and victims of lawsuit abuse. (In polls, voters agreed with Wisconsin’s governor’s budget cuts and many of the limits on lawsuits recently enacted in Wisconsin, but not the limits he backed on collective bargaining, which a plurality opposed.)
Prosser himself understood this was a mistake, and made clear that he did not endorse the law as a matter of personal preference (although he expressed no opinion on its legality). Prosser presumably wanted the race to focus on other issues where voters actually agree with conservatives, like crime, and to a lesser extent, lawsuit abuse, areas where Wisconsin’s liberal Supreme Court justices had behaved very badly in the past. If conservatives had talked about crime and not unions (the way Prosser hinted they should do), he would have been reelected.
If you are a white working-class voter in a Wisconsin swing district in a place like Eau Claire, you probably hate crime, not unions. (You probably don’t love unions, either, but you have family members who were once in unions and liked being in them, and you won’t take scarce time off from work to vote against an abstraction like collective bargaining).
Prosser trails because voter turnout was higher in liberal bastions like Dane County than in most moderate or conservative areas of the state. The union issue was simply more important to liberal voters than it was to moderates or conservatives.
As David Frum has noted, the GOP’s dwindling demographic base requires it to rely increasingly on white working-class voters (due to rising percentages of minority voters, who are mostly Democrats), who are not as receptive to anti-union appeals. Many conservative talking heads and journalists don’t seem to understand that.
This judicial election wasn’t important chiefly for the collective bargaining issue. That’s small potatoes compared to other issues like crime and lawsuit abuse. The liberal takeover of the court could lead to judicial invalidation of the recent comprehensive lawsuit reforms passed by the Wisconsin legislature (which will be a key element in attracting employers and jobs to the state), and the overturning of scores of criminal convictions based on made-up rules created through radical interpretations of the state constitution. Collective bargaining was the tail that wagged the dog.
When it was controlled by liberals in the past, the Wisconsin Supreme Court’s most egregious rulings were about crime and lawsuit abuse, not unions.
As I noted earlier:
Conservatives could have appealed to voters in general with an anti-crime message, and upscale voters with issues like curbing lawsuit abuse. Ordinary voters care a lot about crime: in 1986, California voters voted to remove liberal Chief Justice Rose Bird from the California Supreme Court after a series of rulings that overturned death sentences, convictions, and long prison sentences, based on very weak grounds. (Bird also issued pro-union and anti-business rulings, but her critics wisely did not focus on those rulings in appealing to voters at large, instead focusing on the issue that resonated better with voters: crime. California voters also removed two other liberal justices who were perceived as pro-crime, one of whom (Justice Grodin) was not particularly anti-business. Crime was the key issue, not unions or business).
The law limiting collective bargaining was a good idea, but its benefits to taxpayers, while real and substantial, may have been overstated. At the statewide level, most of government unions’ power comes from lobbying, not collective bargaining. Even in South Carolina, where government collective bargaining is banned, the teacher’s unions are very powerful. Incredibly generous pensions for municipal employees are often the result of lobbying the state legislature, not bargaining with the city or county that employs them.
The law limiting collective bargaining was perfectly legal and constitutional. Nevertheless, with liberals likely to control the Wisconsin Supreme Court beginning in August, I would not be surprised to see that law struck down for political reasons, even if there is little legal or logical basis for such a ruling.
Generally speaking, a state supreme court’s interpretation of state law or the state constitution is final and unappealable, no matter how bizarre it is; the U.S. Supreme Court can reverse a state supreme court’s ruling on matters of federal law, but not, generally speaking, its interpretation of state law – no matter how strange that interpretation is.
