Tommy Washbush
In 1998, police in Houston responding to a bogus report of a weapons-related disturbance entered an unlocked apartment and found John Geddes Lawrence and another adult man engaging in consensual sex. Both were arrested and charged with violating a Texas law that forbade “deviate sexual intercourse” between people of the same sex. They were tried, found guilty, and fined.
The Lambda Legal Defense and Education Fund, a national advocate for gay rights, appealed the convictions all the way to the U.S. Supreme Court, which in a 6-3 decision in 2003 struck down the law as unconstitutional.
Judge Jennifer Dorow, who is running for the Wisconsin Supreme Court seat being vacated by conservative Justice Patience Roggensack, considers this ruling to be the “worst Wisconsin or U.S. Supreme Court decision” she can think of. At least that’s what she put on her 2011 application to Wisconsin Gov. Scott Walker for an appointment to the Waukesha County circuit court bench, which she received late that year.
Dorow called the court’s ruling in Lawrence v. Texas “a prime example of judicial activisim [sic] at its worst.” The court’s majority, she complained, “went well beyond the four corners of the U.S. Constitution to declare a new constitutional right.”
The right to which Dorow was objecting is the right of adults to engage in private sexual behavior without being hauled off to jail. (In his concurrence with the U.S. Supreme Court ruling ending the constitutional right to abortion, Justice Clarence Thomas identified the Lawrence decision as one the court might want to also overturn.)
Dorow entered the race in late November, soon after presiding over the high-profile trial of a man convicted of killing six people and injuring many others when he drove his car into a crowd at a Waukesha Christmas parade in 2021. She is one of two self-described conservatives vying for the officially nonpartisan seat, along with former Justice Dan Kelly, who was appointed by Walker only to be defeated by liberal Jill Karofsky when he sought a full 10-year-term in 2020.
Kelly’s credentials as a hard-right conservative have been clearly established. In a book chapter he wrote that was included in his application to Walker seeking appointment to the Supreme Court, Kelly argued that affirmative action is as morally reprehensible as slavery and that allowing same-sex couples to wed “will eventually rob the institution of marriage of any discernible meaning.”
Ed Fallone, a law professor at Marquette who has run twice for the state Supreme Court, sees Dorow’s entry into the race as an effort by Republicans to present an alternative to a known extremist — Dan Kelly. They looked at how poorly hard right-wingers fared in the Nov. 8 election — Gov. Tony Evers beat Tim Michels and Mandela Barnes came close to ousting Sen. Ron Johnson — and decided “this race is too important to risk another statewide vote on an extreme conservative.”
And so they pushed hard for Dorow to enter the race, Fallone says, because she’s “someone they can sell as more moderate and hope that there’s not enough time for progressives to get the word out that Judge Dorow is actually exactly as extreme a conservative as Dan Kelly. I think that’s what’s going on.”
On the other side are two liberal candidates: Dane County Circuit Judge Everett Mitchell and Milwaukee County Circuit Judge Janet Protasiewicz. The Feb. 21 primary will narrow the field to two candidates for the April 4 election. It’s unlikely but possible that both of the two top vote-getters could be of the same ideological bent.
This could happen if all four contenders were to garner similar vote totals, with the candidates for each “side” roughly splitting the vote between them. For instance, an outcome like this: Dorow, 28 percent; Kelly, 26 percent; Mitchell, 24 percent; Protasiewicz, 22 percent. This would seal control of the court for conservatives for years to come, before a single April vote is cast.
Candidates for Wisconsin Supreme Court include, clockwise from top left, Milwaukee County Judge Janet Protasiewicz, former Justice Dan Kelly, Waukesha County Judge Jennifer Dorow and Dane County Judge Everett Mitchell.
In the coming year, the Wisconsin Supreme Court is expected to decide whether abortion in Wisconsin will continue to be almost always illegal under a 1849 state law. It could also rule on the wholesale gerrymandering that has given Republicans a virtual lock on control of the state Legislature. And it will likely decide important cases regarding election rules and challenges for the 2024 presidential election.
Currently, conservatives enjoy a 4-3 court majority, although conservative Justice Brian Hagedorn has on occasion voted with the court’s three liberals. (This is highly unlikely to happen on the issue of abortion — Hagedorn, an evangelical Christian, has called Planned Parenthood “a wicked organization more committed to killing babies than helping women.”)
Alan Ball, a Marquette University history professor who tracks the state Supreme Court on his website SCOWstats, says that, so far in the 21st century, there have been times when the court has “leaned” conservative and times when it has been heavily conservative. “If a liberal prevails in next spring’s election,” he tells Isthmus, “the court will be clearly liberal for the first time in living memory.”
Meanwhile, if a conservative wins, the next opportunity for liberals to regain a seat, short of a resignation or death, would be 2026.
As governor, Scott Walker asked Wisconsin applicants seeking judicial appointments to identify what they considered to be the best and worst cases decided by the Wisconsin or U.S. Supreme Court. While picking the national case Lawrence as the baddest of the bad, Dorow named a Wisconsin case, Ozanne v. Fitzgerald, as an example of a court at its best.
“The decision in this case is rightly based on the doctrine of separation of powers, and serves as an excellent example on the limits of the judiciary,” Dorow wrote. “A judge should not impose her will on matters of legislative policy.” The ruling overturned a lower court’s blocking of the passage of Walker’s union-busting budget repair bill, known as Act 10, on grounds that the Legislature failed to follow the requirements of the state open meetings statute in passing the law.
After a closed door deliberation that got so animated one justice put hands on another justice’s neck, the Supremes ruled, 4-3, that the courts had no authority to tell the legislative branch what to do when it came to open meetings compliance. This radical act of judicial activism effectively ended the need for the Legislature to obey the open meetings law, as must all other state and local public bodies.
Both Dorow and Kelly got their law degrees from Regent University Law School, founded by the televangelist Pat Robertson. Both have been personally involved in electoral campaigns — Kelly was a “kitchen cabinet advisor” to Wisconsin Supreme Court Justice Rebecca Bradley in her successful 2016 campaign; Dorow is a member of the Republican Party of Waukeska who has worked on a number of GOP candidate campaigns. Since being appointed by Walker, Dorow has won two elections, in 2012 and 2018; Kelly has never been elected.
On the liberal side, Mitchell and Protasiewicz were both initially elected and not appointed to their circuit court judgeships. Mitchell, a Black man, is a Baptist preacher who will surely run into a buzzsaw of hysterical condemnation for having led a chant of “no justice, no peace, no racist police” during a protest over the police killings of George Floyd and Breonna Taylor in 2020. But he is a reform-minded judge with a long history of public service.
Protasiewicz, a former Milwaukee County prosecutor, is trying to stake out a claim to independence, telling the Wisconsin Examiner “I don’t want to be doing the same thing that I’m accusing the far right of doing” in terms of having an ideological predisposition.
It’s a risky strategy: In her 2019 bid to unseat Hagedorn, Democrat-backed candidate Lisa Neubauer claimed to lack any political leanings, declining even to say whether she was pro-choice on abortion “because I want to have an open mind about every single issue that comes before our court.” Hagedorn, a much less reticent candidate, narrowly prevailed.
Protasiewicz, for her part, has expressed support for “a woman’s right to make decisions over her own body.” Mitchell has also staked out a pro-choice position.
