Milwaukee Journal Sentinel

Kelly no longer a ‘maverick’


State Supreme Court Justice Daniel Kelly likes to paint himself as a “constituti­onal textualist.”

Kelly’s bid to hold onto his seat against Dane County Circuit Judge Jill Karofsky in the April 7 election has pitted conservati­ves and liberals against each other, with the state GOP and President Donald Trump backing Kelly, while Karofsky has the support of Democrats.

But Kelly claims that on the bench he sets aside his conservati­ve views and focuses only on the letter of the law.

He made that argument again during a March 8 interview on WISN TV’s “UpFront,” and used a blog run by a Marquette law professor to bolster his claim. That professor, Kelly said, found no correlatio­n between his opinions and conservati­ve background and even called him a maverick.

“He starts out with what he believes he knows about my politics, and then he compares the opinions that I write and join,” Kelly said. “He’s looking to see if there’s any necessary correlatio­n between the two. And his conclusion was that there’s not a necessary correlatio­n there, and in fact, he called me a maverick.”

A professor who analyzes state Supreme Court justices did suggest Kelly could be a maverick among conservati­ves — in 2017, and in one type of case. But a more recent review of opinions indicates that title may belong to another justice.

So how does Kelly’s claim stack up?

Some constituti­onal theory

The blog Kelly referenced, SCOWstats, is run by Marquette University history professor Alan Ball.

When asked for evidence to back Kelly’s claim, his campaign referred PolitiFact Wisconsin to an Oct. 16, 2017, post by Ball titled “Justice Kelly a Maverick? An Update on Fourth Amendment Cases.” In that piece, Ball found that Kelly and Justice Rebecca Bradley were more receptive to Fourth Amendment arguments than their predecesso­rs.

Reminder: The Fourth Amendment of the U.S. Constituti­on protects people against “unreasonab­le searches and seizures.”

Most Fourth Amendment cases that come before the state Supreme Court are criminal ones, Ball told PolitiFact Wisconsin. That could mean the search of a vehicle in a drug case, as one example. Liberal justices tend to be more sympatheti­c to defendants, Ball said, while conservati­ves often support the state and agree the evidence was admissible.

Ball noted that Kelly had cast only a small number of votes at the time of writing and said “this early impression will need to be checked against the results from subsequent terms.”

But Ball was struck by an opinion written by Kelly that cautioned against giving the state Legislatur­e the power to erode people’s constituti­onal rights, using arguments that could have come from a more liberal justice.

“There are certain parts of the State that experience a disproport­ionate amount of crime,” Kelly wrote in his opinion for State of Wisconsin v. Navdeep S. Brar. “Perhaps the legislatur­e might decide police need greater access to homes and other buildings in such areas.”

To Ball, that opinion and Kelly’s receptiven­ess to Fourth Amendment arguments distinguis­hed him from other conservati­ves.

“Thus, if one were asked to predict who might emerge, if only occasional­ly, as a maverick among the court’s five ‘conservati­ves’ in the upcoming term, the most conceivabl­e candidate could well be Justice Kelly, and a promising place to look for evidence of this would be his separate opinions in Fourth Amendment criminal cases,” Ball wrote.

While Kelly cited the post as evidence that he’s an independen­t thinker, it’s not quite that straightfo­rward.

Pay attention to Ball’s phrasing. He didn’t outright call Kelly a maverick — he instead speculated that the justice could emerge as a possible but only occasional maverick.

Plus, Ball wrote that post after Kelly’s first term and focused only on Fourth Amendment cases. That’s certainly not enough for Kelly to hinge his identity on.

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That was then

Kelly’s claim also omits some key informatio­n: Ball wrote another, more recent, blog post assigning the title of maverick to someone else.

On Jan. 30, Ball argued in a post that Justice Rebecca Bradley is proving to be more independen­t than Kelly. The two were in lockstep during the 2016-17 term, Ball’s data show, but Bradley has increasing­ly deviated from her fellow conservati­ves.

In 2018-19, for example, Kelly voted with conservati­ve Chief Justice Patience Roggensack on two more cases than Bradley, according to Ball. Kelly voted with Justice Annette Ziegler 74% of the time that term, compared with 63% for Bradley.

So far this term, Kelly has voted with Roggensack and Ziegler on every case, while Bradley has only voted with them 43% of the time. Ball expects that gap to close as the term progresses but said Bradley — as it stands now — is still twice as likely to disagree with other conservati­ves than Kelly.

“If you wanted to call any of them a maverick, she would be a better candidate this year than Kelly,” he said.

Translatio­n: Kelly is relying on an outdated analysis as evidence of his independen­ce.

Our ruling

In a TV interview, Kelly claimed that a Marquette law professor called him a “maverick” and found no correlatio­n between Kelly’s opinions and conservati­ve background.

The professor analyzed Kelly’s rulings on Fourth Amendment cases in 2017 and determined that Kelly “might” emerge as a maverick after standing out among his fellow conservati­ves. But that’s hardly enough to stake an identity on.

And earlier this year, Ball awarded the label to a new justice: Rebecca Bradley. Kelly’s claim completely disregards the most up-to-date analysis of his opinions.

A statement is Mostly False when it contains some element of truth but ignores critical facts that would give a different impression.

That fits here.

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