Tommy Washbush / Freepik
The scales of justice going up and down in front of a split red-blue background.
Democrats are trying to make the Supreme Court race about abortion. That makes sense from a political standpoint, but it may actually be a false issue.
That’s because the question will likely be settled before the new justice takes the seat being vacated by liberal Justice Ann Walsh Bradley. While the election is in April, the winner won’t join the court until August. The case before the court will likely be decided before then by the court’s current 4-3 liberal majority.
Well, except for this: stare decisis. There has long been a principle followed by judges everywhere to be conservative in their rulings. Not politically conservative, but extremely hesitant to go against precedent. When a previous court decided a question of law, subsequent courts were loath to overturn the ruling.
No more. It’s entirely possible that, if Brad Schimel wins in April and the court decides the abortion issue before he takes office, conservatives will find a way to get the question back before the court. Then Schimel will vote the other way and the court’s restored 4-3 conservative majority will reverse what had just been decided only months earlier.
The special role of the judiciary branch then will have been completely trashed. The court will essentially just be another house of the Legislature, with policies being set by whichever side has the majority. Only it will be a super-charged legislative body over which the governor has no veto power.
Both Schimel and his liberal opponent, Susan Crawford, claim that they will leave their personal views, including those on abortion, outside the court chamber and they’ll rule impartially on the law. Nobody believes them nor should we. If given the chance, Schimel will vote to uphold or restore Wisconsin’s draconian old anti-abortion statute and Crawford will strike it down.
That’s one reason I’m voting for Crawford, but I’d rather have the option of voting for someone who is so above politics and so unbiased and so schooled in the law that I honestly couldn’t say in advance how they would rule on anything. Because the role of the courts in our system is far more important than how they might rule on any specific issue. Choosing a justice should be entirely different than voting for a legislator or a governor. We shouldn’t be picking somebody who shares our views. We should be picking the most honest broker, the best, sharpest-eyed referee.
In a story which appeared in the Wisconsin State Journal on March 3, UW political science professor Howard Schweber had this observation about what's happened to the Wisconsin Supreme Court: “Legal principles are supposed to be more stable, and it doesn’t matter which side you’re on for one or a number of these issues, even something as divisive as abortion rights. The fact that major legal and constitutional understandings can flip back and forth year to year because elections have consequences is really contrary to the basic notions of how a judiciary is supposed to work.”
Another reason I’ll vote for Crawford is that, in a way she doesn’t intend, it may lead to the kind of stability that Schweber is talking about. If the current court strikes down the old abortion law and Crawford wins there will be no point in anti-abortion forces trying to get the issue revisited. The ruling will stay in place for the foreseeable future. Some sense of stability will return, at least on one big issue.
And, despite my support for reproductive rights, the broader idea of an anchor that tethers our system to fundamental principles of separation of powers and impartial justice is more important to me. It turns out that in this case Susan Crawford is the better choice in both respects.
Dave Cieslewicz is a Madison- and Upper Peninsula-based writer who served as mayor of Madison from 2003 to 2011. You can read more of his work at Yellow Stripes & Dead Armadillos.
