What The Hell America!

When Susan Crawford, Wisconsin’s newly elected Supreme Court justice, took the stage in Madison on Tuesday night to claim victory, four women flanked her, beaming, hands on one another’s shoulders. One had her fist raised in triumph.

The supporters were four justices now serving on the state’s Supreme Court, representing the court’s liberal faction. Pictures and video of the moment captured the overt display of partisanship in a contest for the state’s highest court.

Missing from the scene: the court’s three conservative leaning justices. About 60 miles east, one of them, Rebecca Bradley, joined the election event of the opposing candidate, former Republican Attorney Gen. Brad Schimel, where she expressed disappointment that he lost and blamed liberals for politicizing the court.

“I also think the way Judge Crawford ran her race was disgusting,” Bradley said, according to the news site The Bulwark. Bradley accused the Democratic Party of “buying another justice.”

Bradley added: “It needs to stop. Otherwise, there is no point in having a court. This is what the Legislature is supposed to do, to make political decisions based on policy. That’s not what a court’s supposed to do, and unfortunately, we’re going to see this happening for at least the next several years.”

Officially the Supreme Court race was nonpartisan. Crawford and Schimel did not run with an R or D beside their name. Wisconsin judges take an oath to be faithful to the state constitution, to administer justice without favoritism and to act impartially.

But the spectacularly high-profile Wisconsin contest was undeniably political. The nonpartisan Brennan Center for Justice estimated the spending topped $100 million — making it the most expensive judicial race in U.S. history. Large sums came from political action committees and shadowy third-party groups that funneled money into TV ads, mailers, canvassing and other assistance.

President Donald Trump, taking a keen interest in the race, endorsed Schimel and held a “tele-rally” for him. His close adviser, billionaire Elon Musk, funneled roughly $25 million into the race, via his super PAC, an associated dark-money entity and direct party donations. The outlays included offers to pay Schimel volunteers $50 for every photo of a voter outside a polling station, as well as million-dollar checks as prizes to three supporters. At one point in the race, Schimel posed for photos in front of a giant inflatable likeness of Trump.

On the other side, the Democratic Party endorsed Crawford and steered over $11 million to her campaign from contributions made to the party by donors that included billionaires such as George Soros and Democratic Illinois Gov. JB Pritzker. On social media in the waning days of the campaign, both Barack Obama and Hillary Clinton urged support for Crawford. Wisconsin Democratic Party Chair Ben Wikler attended Crawford’s victory party in Madison.

Wisconsin’s raw partisan display reflects a growing focus on the importance of these courts in shaping policy — especially on hot-button issues like abortion, redistricting and voting rights. At the same time, it feeds a growing concern nationally about the independence of state high courts. Some government watchdogs worry that the blatant partisanship around who serves on these courts is increasing distrust by the public in judicial decisions, jeopardizing the system of checks and balances needed in a functioning democracy.

The targeting of state supreme courts by special interests and ultrawealthy individuals, some court observers say, can leave the public with the impression that justices are no different than any senator or representative or governor: devoted to serving their political allies. At that point, will court orders no longer carry the moral weight and respect needed to carry them out?

At the national level, a federal judge is considering whether the Trump administration defied a court order to halt planes deporting immigrants to a prison in El Salvador, prompting Trump to call for the judge’s impeachment. In Wisconsin, meanwhile, Musk exhorted voters to sign a petition against “activist judges.”

“Especially at this moment, when courts are being tested and are serving as a crucial bulwark in our democracy, it is very important that the public be able to trust them and keep demanding that other elected officials follow court decisions,” said Douglas Keith, senior counsel for the Brennan Center, a policy institute that studies judicial elections and advocates for a fair and independent judiciary.

Similar to how U.S. Supreme Court nominations have been subject to political maneuvering, state courts in recent years have seen battles over ideological control.

In North Carolina, where justices run under partisan labels, the Republican-led Supreme Court blocked the certification of a Democrat elected to the bench in November, while the GOP candidate challenges the validity of more than 60,000 ballots cast in the race. On Friday, the state’s lower court of appeals, in a 2-1 decision led by Republicans, ordered those voters to provide their driver’s license or Social Security number within 15 days to demonstrate their eligibility to vote. Democrats vowed to challenge the ruling in front of the state Supreme Court.

And in Iowa, after the Supreme Court in 2018 ruled that the state constitution protected the right to an abortion, the Legislature changed who can serve on the state’s judicial nominating commission. New justices, appointed by the state’s Republican governor, in 2022 reconsidered the abortion issue and reversed course, also citing the constitution.

The debate over money in Wisconsin’s state Supreme Court races goes back more than 15 years, when the state enacted public financing for such contests to limit spending. But that did not last long. Republicans threw out spending reforms in 2015, and the money devoted to these races has grown exponentially.

In Wisconsin eight years ago, a group of 54 retired judges were so worried about the influence of money on the work of the judiciary that they petitioned the Wisconsin Supreme Court. They sought to amend the Code of Judicial Conduct to require parties in lawsuits to disclose campaign contributions over $250 and impose recusal standards in cases involving sizable donations.

“As money in elections becomes more predominant, citizens rightfully ask whether justice is for sale,” the petition stated.

The state Supreme Court voted 5-2 to deny the petition, with conservatives, including current Justices Annette Ziegler and Rebecca Bradley, lined up against it on constitutional grounds.

Michael Kang, a professor at the Northwestern Pritzker School of Law, has studied the effect of campaign donations on state supreme court decisions and found that judges elected in competitive races were more likely to rule in favor of business litigants as the amount of campaign donations they received from corporate interests increased. His research, over many years, also found that contributions from political parties correlated with subsequent judicial voting in election disputes over issues such as ballot counting or candidate eligibility.

But Kang’s work went further by examining judges barred from running again because of mandatory retirement ages. He found that the effect of money drops off for lame duck judges who are spared from having to raise money to run again.

“You can go a long way toward addressing the role of money, even with judicial elections, by giving judges one long term, but they’re not eligible for reelection at the end,” he said at a recent panel discussion. “And that, to an important degree, ought to reduce the influence of money.”

In Wisconsin, Crawford’s victory cements liberal control of the court for the next three years.

Beside her on stage in Madison were liberal justices: Jill Karofsky, Rebecca Dallet, Ann Walsh Bradley, who is retiring, and Janet Protasiewicz, who was elected in 2023 with the help of $10 million from the Democratic Party. That contest broke spending records, at roughly $56 million, and shifted the balance of the court to the left after 15 years of conservative dominance.

The court’s current session ends in June, and Crawford’s swearing in will be in August. In the future, the seven-member court is likely to confront issues with huge implications for both parties or their supporters.

Crawford’s victory signals that Wisconsin likely will continue to permit access to abortion, which now is legal up to 20 weeks in the pregnancy. Anti-abortion advocates backed Schimel, and had he won, it was assumed that Wisconsin could revert to an 1849 law that outlawed most abortions. Over a decade ago, as a county district attorney, he signed on to a legal white paper advocating support for the 1849 provision, which does not allow for exceptions in the case of rape or incest or protecting the mother’s health. Crawford, as a private attorney, fought for abortion rights.

Democrats at some point are widely expected to bring another lawsuit challenging the state’s gerrymandered congressional maps. Wisconsin voters are evenly divided politically, but representation in the U.S. House is skewed to favor the GOP. Six seats are held by Republicans and two by Democrats. Last year, the liberal-controlled court didn’t fall in lockstep with some expectations about its political leanings, handing Republicans a small victory in declining to consider a Democratic lawsuit challenging those maps.

In other states, justices — who once could largely toil above the political fray — have paid a political price for their decisions.

In Ohio in 2022, Republican lawmakers briefly toyed with impeaching Chief Justice Maureen O’Connor, a fellow Republican, after she sided with three Democrats in repeatedly overturning the state’s legislative maps, which had been drawn by Republicans. She later retired.

In Oklahoma last November, voters tossed out Yvonne Kauger, who had served over 30 years on the bench. A campaign to remove her and two colleagues, fueled by $2 million in dark money, painted them as too liberal, noting they were appointed by Democratic governors.

“Is it any surprise all three are activist liberal judges, killing common sense lawsuit reform, adding millions to the cost of doing business, padding the pockets of trial lawyers?” one video ad blared.

Justices traditionally don’t campaign in Oklahoma retention elections, which Kauger told a news outlet left the judges “helpless” to defend themselves. “I am saddened and alarmed that the system is being used to attack the independent judiciary based on dissatisfaction with a few specially selected opinions,” she said.

In Wisconsin, ads from both sides painted unflattering portraits of the candidates. Crawford was labeled a “radical liberal judge” who gave a light sentence to a child molester. Schimel was accused of giving plea deals to despicable criminals. Both were attacked for their views on abortion.

Musk and Trump, meanwhile, depicted Schimel’s installment on the court as a vital step in carrying out Trump’s agenda and keeping GOP control of Congress.

In Green Bay, two days before the election, Musk told supporters the state Supreme Court race “is a vote for which party controls the U.S. House of Representatives.” Republicans now control the chamber by only 7 votes. Redrawing congressional lines in Wisconsin could make some seats more competitive for Democrats.

“That is why it is so significant. And whichever party controls the House, you know, it, to a significant degree, controls the country, which then steers the course of Western civilization,” Musk told the crowd.

In the end, Crawford won with 55% of the vote.

“Today, Wisconsinites fended off an unprecedented attack on our democracy, our fair elections, and our Supreme Court, and Wisconsin stood up and said loudly that justice does not have a price,” Crawford told her supporters. “Our courts are not for sale.”

Retired Ohio Supreme Court Justice Paul Pfeifer said he does not like big money in politics at any level, from county commissioner to state Supreme Court. But after decades of wrestling with the issue he’s concluded that spending controls are unworkable, as loopholes invariably open.

“I view it much like a water bed,” he said. “You push down here and it pops up over there.”