Tuesday’s Supreme Court Race Is the Latest Chapter in Wisconsin’s Heated Power Struggle

But one candidate wants voters to forget the beliefs and career record driving his jurisprudence, with criminal justice at issue.

Kyle C. Barry   |    April 2, 2020

Jill Karofsky (campaign account/Facebook)

This article originally appeared on The Appeal, which hosted The Political Report project.

But one candidate wants voters to forget the beliefs and career record driving his jurisprudence, with criminal justice at issue. 

Over the last dozen years, the Wisconsin Supreme Court has been in the midst of a heated power struggle, with enormous stakes for statewide policy. The court has been a battleground for many of the state’s most important and contentious disputes, from labor rights to election law to education policy

Amid massive outside campaign spending on both sides and especially negative campaigns, the court has shifted, as Lincoln Caplan wrote in the New Yorker in 2015, “from a congenial, moderately liberal institution into a severely divided conservative stronghold.” Conservatives have held a court majority since 2008, and now hold a reliable 5-2 advantage. 

The latest fight in this struggle is a Supreme Court election that will be decided on April 7, and criminal justice reform has been front and center.

State officials have decided to maintain the election during the COVID-19 pandemic despite mounting calls to postpone it due to the health risks posed by this crisis.

Jill Karofsky, a trial court judge and former prosecutor, is challenging incumbent Daniel Kelly, who was appointed by Republican Governor Scott Walker in 2016. The winner will serve a 10-year term. If Karofsky wins, liberals will narrow conservatives’ majority to a 4-3 edge, and will then have a chance to regain control of the court when Chief Justice Pat Roggensack is up for election in 2023. 

The campaign has taken familiar form: personal, ideological, and expensive. Groups such as Planned Parenthood, the Wisconsin League of Conservation Voters, and the National Democratic Redistricting Committee are supporting Karofsky, while Americans for Prosperity (the group funded by the Koch brothers) and Wisconsin Manufacturers & Commerce (or WMC, the state’s largest business organization) have lined up to support Kelly. 

Listening only to Kelly’s campaign rhetoric, one could miss these ideological stakes. He has stuck to the typical but misleading line among judicial candidates that they are apolitical, though he has done so through the distinctly conservative claim to “textualism.” “The campaign that I’m running is one of constitutional fidelity and faithfulness to the text of the laws that we apply,” he said at a recent debate. He merely applies legal texts, he says, deciding cases with “rigorous logic” free of personal beliefs. 

Karofsky has been more open about the reality that judges shape and inform public policy. She too talks of “independent” courts and says she is “not running to reform the system,” but she has talked openly about her values—including commitments to racial justice and the need for criminal justice reform.  

But Kelly’s own career signals a consistent set of values as well, values that closely align him with the politics of Walker, the conservative governor who appointed him, and President Trump, who endorsed Kelly at a Milwaukee rally in January. 

Trump’s endorsement makes sense. Kelly is a Trump-appointee archetype. He is a white man. He led a local chapter of the Federalist Society, the conservative legal network to which nearly every Trump appointee belongs. He spent his legal career defending corporations and Republican policies, including the legislature’s 2011 redrawing of State Assembly districts to favor Republicans. In 2014, Kelly equated affirmative action with slavery, writing that “neither can exist without the foundational principle that it is acceptable to force someone into an unwanted economic relationship,” and so, “morally, and as a matter of law, they are the same.” (Never mind that affirmative action, far from an “unwanted economic relationship,” is typically a voluntary program that schools and employers use to increase diversity.) That same year, he wrote that the right to same-sex marriage “will eventually rob the institution of marriage of any discernible meaning.” In blog posts, he repeatedly expressed contempt for safety net programs like Social Security and Medicare. “It is true that there will always be people who need help,” Kelly wrote in 2012, “but to the extent we conclude from that datum that government must intervene, we do a disservice to those we are supposedly helping, as well as the people from whom we are stealing to provide the ‘help.’”

Kelly’s views have led to a consistent conservative record ever since he was appointed to the state Supreme Court. In 2017, for example, Kelly wrote the 5-2 majority opinion that reversed a lower court decision and struck down a Madison transit agency rule barring passengers from bringing concealed firearms on city buses.

Kelly has also ruled in favor of the conservative Wisconsin Institute for Law & Liberty (WILL) in all nine opportunities that he has had, including two cases in which the organization took a position in amicus briefs, according to an analysis by One Wisconsin Now. Kelly previously served on the litigation advisory board for WILL, and has said that he won’t decide until after the election whether to recuse himself from WILL’s litigation to purge more than 200,000 names from voter registration rolls.

Kelly’s campaign did not reply to requests for comment on these cases and his broader record.

This contrast between Karofsky, who acknowledges some of the values that inform her jurisprudence, and Kelly, who, despite his predictable results, sells the fiction that judicial decision-making can be reduced to “logic,” has been dramatic on criminal justice issues.

Karofsky, the former prosecutor, has promoted the need for reform. She has said that Wisconsin needs to reduce prison populations, address racial disparities in the criminal legal system, reform the use of money bail, and provide more pathways to drug and mental health treatment instead of criminal prosecution. 

“We have over 23,000 people incarcerated in this state, four times as many as they have next door in Minnesota,” she said at an event with the University of Wisconsin Pre-Law Society. “The Department of Corrections budget in Wisconsin is more than the Department of Education budget. How does that make sense?” 

During a recent debate, she also said the legislature should reform the cash bail system—ensuring that people are not jailed simply because they lack the money to buy their way out—because “if you hold someone just one night, that has an incredible effect on their livelihood, has an incredible effect on their ability to work, on their family, [on] them getting to school.” Karofsky’s campaign did not respond to a request for comment about her views on criminal justice reform, nor about her prosecutorial record.

Kelly, on the other hand, says that it’s inappropriate for judicial candidates to even acknowledge the need for reform. But he and his supporters have deployed hackneyed fearmongering tactics, attacking Karofsky as “soft on crime.” The Republican State Leadership Committee released attack ads, replete with ominous music, saying that, as a “prosecutor, Karofsky even went easy on criminal predators, like no jail time for a monster who sexually assaulted a 5-year-old girl.” The ad refers to a case that Karofsky had nothing to do with, however, as the fact-checking website PolitiFact established. Kelly’s campaign has also accused Karofsky of “letting hardened criminals off easy,” including by showing compassion when she sentenced a man convicted of first-degree murder

In that case, Karofsky could have sentenced the man to life in prison without any chance of release, but she allowed him to petition for parole after 20 years—when he will be 81 years old.

Kelly’s tough-on-crime campaign tracks with his record on the Supreme Court. Dean Strang, a longtime criminal defense lawyer in Wisconsin, told me that Kelly and the court’s current majority “tend to look for the most restrictive view of individual liberty and the most robust realm for police powers” in criminal cases. 

That view is supported by the analyses conducted by Marquette professor Alan Ball, which show that, on the whole, Kelly and the court’s conservative majority are deciding in favor of prosecutors far more often than is the court’s smaller liberal bloc. Kelly was in the majority of every criminal case the court decided last term, when prosecutors won 14 of 16 decisions. The court divided—that is, was not unanimous—in seven criminal cases, providing opportunities to identify fault lines within the court and compare the relative views of individual justices. Of those seven cases, Kelly cast his vote in favor of prosecutors six times.  

This isn’t a result of using “rigorous logic” or strictly applying legal texts, Strang said, but rather of the court’s inability to identify with the people who are brought into the criminal legal system at disproportionate rates: low-income people, people of color, people with mental illnesses and addictions. “In my view,” Strang said, “the through line over the last 12 years of the Wisconsin Supreme Court has been that criminal defendants succeed only to the extent that they’re within the contours of the conservative majority’s cramped capacity for empathy.”

Keith Findley, co-founder of the Wisconsin Innocence Project, offered a more pointed critique. “[Kelly] and the conservative majority have gone out of their way at every turn to undermine claims and evidence of innocence, including by ignoring precedent,” he told me. 

In the 2017 case State v. Denny, for example, the court overturned a 12-year-old case providing that, under Wisconsin law, any convicted person had the right to test physical evidence for DNA if the evidence was relevant to his or her case. The 5-2 decision, with Kelly in the majority, replaced that rule with a more restrictive one. Justice Ann Walsh Bradley wrote in dissent that the decision “imped[es] the search for the truth by erroneously limiting access to post-conviction DNA testing.” Findley agrees. The Denny decision “was a remarkable example of judicial activism by a conservative court,” he said, “and its only purpose was to make it harder for convicted individuals to even get the DNA testing they need to try to prove their innocence.” 

But Karofsky’s record as a former state and local prosecutor also merits attention. When former prosecutors present “themselves in campaigns as progressive reformers,” Strang said, voters should expect “some honest reckoning with their past role in the excesses of criminal prosecutions and punishment.” 

For Karofsky, that would include her role in a so-called “shaken baby” case—a prosecution premised on the dubious medical assumption that certain injuries in infants could only be caused by severe shaking or other acute trauma, like falling out of a window or experiencing a car crash. 

As a young prosecutor, Karofsky brought one of these cases against Audrey Edmunds, a daycare worker who in 1996 was convicted of shaking to death a 7-month-old infant, and was sentenced to 18 years in prison. In 2008, lawyers with the Wisconsin Innocence Project presented new research on Edmunds’s behalf, showing that there could have been other causes for the infant’s death, and convinced a state Court of Appeals to overturn her conviction. Edmunds walked free after 12 years in prison, and the state decided not to retry her. Karofsky’s campaign did not respond to a request for comment about her role in prosecuting Edmunds.

There is at least one case that Karofsky admits she got gravely wrong. In 1998, as journalist Bill Lueders describes in his book “Cry Rape,” Karofsky filed charges against a visually impaired woman named Patty Murphy for making false claims about a sexual assault. In court, Karofsky said that the police officers who interrogated Murphy and concluded that she was lying “ought to be proud of what they did.” But DNA evidence from the crime scene later supported Murphy’s account, and Karofsky dismissed the charges against her.

Karofsky recounts this case in her American Civil Liberties Union questionnaire, saying that she “apologized publicly, and . . . apologized privately” to Murphy, who has forgiven her and now supports her campaign

Kelly has employed a different approach to past controversies, altogether deleting blog posts on a conservative website in which he attacked President Barack Obama and same-sex marriage.

“The future of Wisconsin” is at stake in this election, Karofsky told Isthmus in March. The court will decide cases, she added, that will determine no less than “what democracy in this state is going to look like.” But while both candidates have relatively transparent values that will guide these decisions, one of them has been more willing than the other to make this reality part of the election.

Explore the Political Report’s coverage of 2020 state and local elections.