Major cases loom as Karofsky joins bench
Conservatives still hold Supreme Court, 4-3
MADISON - Jill Karofsky joins the Wisconsin Supreme Court as the nation is gripped by the coronavirus pandemic and the state by political gridlock.
Karofsky will be sworn in Saturday in rural Dane County as she takes a break during a 100-mile run. Her addition to the high court will narrow conservative control of the court from 5-2 to 4-3 — a change that increases the chances of keeping Democratic Gov. Tony Evers’ new mask order in place if it’s challenged in court.
Just one person is being added to the bench, but the entire court will change, said former Justice Janine Geske.
“There’s a whole shift that happens in the conference room (when a new justice is seated),” Geske said. “Because the seven of them develop relationships or disputes and they kind of know each other and they know where they’re going and suddenly you have a new person introduced at the table. … It forces everybody to do a bit of changing and shifting.”
A Dane County Circuit Court judge since 2017, Karofsky beat Justice Daniel Kelly 55% to 45% in April.
She joins the Supreme Court as major cases loom — including one over who should remain on the voter rolls and another that will determine when voters have fewer absentee ballot rules because they are indefinitely confined.
The new court could also be asked to weigh in on issues related to the coronavirus just 21⁄2 months after it struck down the state’s stay-at-home order by a one-vote margin.
The Democratic governor on Thursday issued an order requiring Wisconsinites to wear masks to fight the coronavirus. It takes effect Saturday, the same day Karofsky takes office.
The court is entering a period where
its membership will likely remain stable for years. The next election for a seat on the high court is in 2023, when Chief Justice Patience Roggensack’s term is up. (An election could be scheduled before then if someone leaves early.)
‘It’s the honor of a lifetime’
Karofsky said she’s looking forward to taking the oath of office as she pauses during her ultramarathon.
“It’s the honor of a lifetime to have been elected to sit on the highest court in the state of Wisconsin, the state where I was born and raised and where my kids were born and raised,” she said.
She said she’s been talking to most of the members of the court and believes she can find common ground with them even after heated campaign rhetoric.
“I think when you’re on a court with six other people that being collegial with other members of the court, building a consensus with other members of the court, is very, very important,” she said. “So I am going to be a good listener and make sure that my door is always open and that I’m always available to hear from my colleagues.”
Getting off on the right foot may be challenging, said Ryan Owens, director of the Tommy G. Thompson Center on Public Leadership, a University of Wisconsin-Madison facility established by Republican lawmakers in part to increase the voices of conservatives.
“She ran one of the most aggressive judicial campaigns I’ve seen in a very long time,” Owens said. “She was hostile to the court. She was hostile to the sitting justices. She cast aspersions on them that were really, really severe and I think could damage the court’s perceived legitimacy.
“So I think she has a lot of work to do to try to get on there and talk to some of the justices that are sitting there, explain why she said what she said and hopefully get them to turn the page.”
Decisions could become less predictable
With a more closely divided court, decisions could be less predictable.
The liberals on the court may stick together in the hope of winning over one or more conservative justices from time to time, said Owens, who closely monitors the state’s high court as a law professor. And the conservatives may have fewer internal divisions as they try to make sure their views prevail most of the time.
“In past cases, there might have been some differences jurisprudentially among some of the conservative justices,” Owens said. “I think now they’re probably likely to find more compromise with one another in order to achieve majority status.”
Jeffrey Mandell, a Madison attorney who has represented Evers and other Democrats, said how the court handles cases could change with a smaller ideological margin.
“What it really does is it elevates anyone on the conservative wing — because they’ve got the four, right, so they’ve got the extra vote — it elevates anyone who is willing to be a little bit more of a free agent and willing to splinter a little bit more,” he said.
The justices should be able to get along despite the tough words said during the campaign, he said.
“They’ll all adults,” he said. “They’re also all lawyers, so we’re used to this — you know, you spar in the courtroom and then you grab a beer or at least you shake hands afterward.”
The new makeup of the court could empower Justice Brian Hagedorn, a conservative who at times has broken with the majority. Hagedorn joined the liberals in dissent on the case that overturned the state’s stay-at-home order and sided with liberals to block the fasttracking of the case on the voter rolls.
Large cases coming soon
That gives Democrats hope that a future case over coronavirus rules might go their way.
There may be such a case soon. Some Republicans are incensed over Evers’ mask order and have raised the prospect of suing to block it.
The case on the voter rolls will be heard in September, but likely won’t be decided until after the Nov. 3 presidential election. That timeline has frustrated Republicans.
The case will determine whether about 129,000 voters must come off the rolls because election officials suspect they might have moved.
Also in September, the court will hear a case over when voters can be deemed indefinitely confined. Confined voters do not have to provide a copy of a photo ID to get an absentee ballot, as other voters must. Questions arose in the spring over the issue because voters turned to absentee voting in record numbers and some argued they had been rendered indefinitely confined because of the threat of the pandemic.
The high court is also weighing whether to adopt rules that would make it more likely for redistricting challenges to be heard by the state Supreme Court instead of a federal court. Adopting such rules would increase the chances the justices would have to sort out what legislative and congressional districts look like for the next decade — a major factor in determining which party has the upper hand in elections.
Liberal Justice Rebecca Dallet said she thinks Karofsky’s addition to the court will send it in a new direction.
“When you’re closer to having more evenly distributed ideas, I think people do move,” she said. “It may affect the end results, absolutely.”
She said she’s looking forward to having Karofsky on the court.
“I think she’s going to be a great asset to the court,” Dallet said. “She’s smart, she’s energetic, she’s got a wealth and a depth of experience in the justice system and I think she’s a consensus builder, like I am.”
Dallet plans to run with Karofsky for five miles on Saturday and swear her in outside of Dot’s Tavern in Basco, the 35mile mark on Karofsky’s 100-mile run.
Karofsky, a lifetime runner who has completed two Ironman competitions, planned to participate in a 100-mile run in 2017 but couldn’t because of a ruptured hamstring. The injury left her wondering if she would ever be able to run again.
This year’s official run was canceled because of the coronavirus, but Karofsky decided to run the 100-mile route anyway. She will start the run alone but be joined by friends for portions of it.
“I’m really looking forward to running on that trail and thinking about how momentous that day is going to be for me,” she said of the solo part of the run.
She will start her run at 6 a.m. Saturday and hopes to complete it by noon Sunday. She said she thought it would ordinarily take her about 30 hours to run 100 miles but will need more time because she will have to stop for supplies and carry her own food and water.