MADISON, Wis. — Two years ago, it seemed like all eyes were on Wisconsin and what might have been a sleepy, springtime election.
Two candidates were vying for an open seat on the state Supreme Court. The ideological persuasion of Wisconsin's highest court was at stake. Interest groups around the country took notice, pouring millions of dollars into the Badger State to influence the outcome.
Ultimately, they broke national records for judicial election spending.
Wisconsin voters could be forgiven for having a sense of déjà vu this year. A springtime court election in an off-cycle year is racking up national attention and big-dollar donations as the high court's majority is once again up for grabs.
Early estimates show that this race, which pits liberal Dane County judge Susan Crawford against conservative Waukesha County judge Brad Schimel on April 1, is on track to be even more expensive than the one in 2023.
Nakedly political
The nonpartisan race has taken on a highly politicized sheen. The state and national Democratic and Republican parties are involved. Elon Musk has given more than $3 million to back Schimel. Democratic megadonors like Illinois Gov. JB Pritzker, LinkedIn founder Reid Hoffman and George Soros have donated nearly $2 million combined in support of Crawford. Ads running on TV and social media accuse the other candidate of being too extreme, too partisan and too weak on crime.
But while Wisconsin's court race may end up being the priciest court race in history, these high stakes and high expenses are increasingly the norm. Recent judicial elections in Pennsylvania, North Carolina, Ohio and Michigan also attracted millions in outside spending.
It didn't used to be like this.
"For so long, judicial elections were calm, quiet, non-contested — often literally non-contested," said Damon Cann, a political scientist at Utah State University who wrote a book on the subject.
Shifts over the first decades of the twenty-first century meant that court races went from being staid, relatively nonpolitical affairs to the loud, sometimes nasty and nakedly political races that voters are growing accustomed to.
All of that culminated in Wisconsin's 2023 Supreme Court race, an expensive, bitterly fought contest that raised new questions about the role of political spending in big court elections.
"A lot more folks are becoming aware of just how important these courts are as these courts are playing the role of ultimate decision-makers in some of the highest profile legal fights playing out today," said Douglas Keith, senior counsel on the Judiciary Program at the Brennan Center for Justice, a group focused on democracy and voter rights.
"With that attention comes campaigns that look increasingly like a key U.S. Senate race, and less like the quiet state Supreme Court elections that we saw even just a few years ago."
Now the question is whether such intense court races are simply here to stay.
From the 1840s to the 2020s
Americans have elected judges since the 1840s, but it wasn't until the 1980s that they began to attract pro-business donors, said Charles Geyh, a professor of judicial conduct and ethics at Indiana University's Maurer School of Law who's been tracking judicial elections for more than 20 years.
After an era of pro-consumer legal changes in tort law that made it easier for ordinary people to bring lawsuits against companies, business groups "started to pour money into judicial races with the explicit purpose of changing the complexion of state supreme courts," Geyh said.
But tort law didn't exactly excite voters, Geyh added, so eventually the messaging shifted toward judges' records on crime.
"Because your average voter didn't give too much of a hoot about tort liability, what would often happen is that they would use crime issues as kind of a surrogate," he said, explaining the role of business interests. Court races ended up focusing on tough-on-crime records, ultimately promoting conservative judges who were also good for business.
Then, another sea change came in 2000, with the first TV advertisements in judicial races, according to Cann of Utah State. Those came five decades after America's first political ad aired — a spot for Dwight Eisenhower's presidential campaign. By 2006, Cann says, "TV advertising was nearly ubiquitous in state supreme court races."
Some national pundits decried Wisconsin's hard-fought 2011 Supreme Court races as exemplifying an ugly change. A New York Times opinion piece from the time argued that the matchup was a "nasty, highly politicized race" that "is raising serious questions about the impartiality of the state's highest court."
And it denounced the millions of dollars from "special interests" that sought "to tilt the scales of justice."
But that race cost about $3.58 million — a drop in the bucket compared to what was on the horizon in Wisconsin.
"A new era of judicial politics"
Then the spring of 2023 came to Wisconsin.
In that cycle, groups and individual donors poured an estimated $56 million into the race between then-Judge Janet Protasiewicz, a liberal from Milwaukee, and former Justice Dan Kelly, a conservative from Waukesha County. A conservative justice was retiring, and Protasiewicz's candidacy was pitched as a chance to flip the court's majority to a liberal one for the first time in 15 years.
Amid all the noise, one factor revved up voters, fomenting a comparatively high turnout: abortion.
The Protasiewicz-Kelly matchup came after the U.S. Supreme Court overturned Roe v. Wade, sending the legality of abortion back to the states. In Wisconsin, abortion basically became illegal for a year as providers followed a nineteenth-century law widely understood to outlaw the practice.
That issue has repeatedly motivated high-cost court races, said Keith from the Brennan Center, who described this moment as a "new era of judicial politics."
"There's no other issue that's really come to the fore like abortion rights," he said. "That said, there have been other fights that have led to attention on State Supreme Courts: fights about redistricting, fights around election laws in the lead up to high profile elections, fights about education funding and criminal justice and the death penalty."
The last most expensive race in history
After taking the bench in 2023, Protasiewicz and the 4-3 liberal majority handed down a significant victory for Democrats when they overturned the state's GOP-drawn legislative district maps. That opened the door for Democrats to reclaim some power in Madison.
Meanwhile, arguments have already begun in a lawsuit to clarify the legality of abortion and a challenge to the end of collective bargaining for most public sector unions in Wisconsin.
Depending on timing, the outcome of both issues could come down to whoever wins next month.
During the 2023 campaign, Protasiewicz was clear about what she described as judicial "values," if not out-and-out political stances. She supported abortion rights, she said, and thought Wisconsin's Republican-drawn legislative maps were "rigged."
And she took money from the state Democratic party, some $10 million in all. Kelly did not take Republican party money. Protasiewicz ended up winning by 11 points, a landslide by Wisconsin standards.
In his concession speech late on April 4, 2023, Kelly called Protasiewicz's campaign "deeply deceitful, dishonorable, despicable," and said she "demeaned the judiciary."
High-cost races for independent seats
In this year's election, Schimel, who has held Republican office, is accepting party money. So far, the candidates have raised almost $13 million — $7.7 million for Crawford's campaign and $5.1 million for Schimel's. Partly, that's through a state campaign finance loophole that allows political parties to raise and spend unlimited amounts.
One reason Wisconsin's races can dwarf those in other states is its divided government. With a Democratic governor and a Republican Legislature often at odds, even a nonpartisan court can offer political interests an avenue to pursue their agenda.
Legal experts caution that this can be dangerous after justices emerge from expensive races.
"You have situations where justices are deciding cases involving six and sometimes seven-figure donors to their campaign, or groups that ran million-dollar ads outside of their campaign," said Keith.
In theory, he said, allowing voters to elect judges was supposed to bring judge selection "out of smoke-filled rooms." Instead, these high-profile elections cast a political shadow on what is supposed to be an independent body, which risks undermining public trust.
Geyh, the scholar of judicial ethics, says that judges must commit themselves to a culture of neutrality after taking the bench — which becomes that much harder after a multimillion-dollar and bare-fisted battle.
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