NEW YORK — Wisconsin’s judiciary, officially nonpartisan, has been marred in recent years by political intrigue, divisive elections, and even accusations of one judge placing another in a chokehold.
Now it may be what decides the fate of the outgoing governor’s new laws to limit the power of his successor.
“There will be a challenge, no doubt,” Governor Scott Walker said a few days before he signed bills expanding the power of legislative Republicans he teamed up with over the last decade. “They’ve challenged just about everything we or lawmakers have done.”
The threat of litigation has rarely dissuaded Walker, a Republican who reshaped Wisconsin in his conservative image and who signed the power-shifting measures Friday afternoon as one of his final acts in office. The judiciary has upheld several of Walker’s signature policies in recent years, despite fierce challenges from the left. And as Walker predicted, liberal groups quickly vowed legal action on the new legislation.
“This is a shameful attack on our democracy by politicians who will do anything to hold onto power,” said Eric Holder, an attorney general under then-president Obama who leads one of the groups that has promised a court fight. In a statement, Holder called the new laws “grossly partisan” and “deeply undemocratic.”
After Democrats won top posts in a state that had been controlled over the last eight years by Republicans, Wisconsin is at the center of a bitter national debate over political norms, the transfer of power between parties, and the roles of the executive and legislative branches. A similar power struggle in North Carolina, after a Democratic governor won election in 2016, set off a court battle, and the fate of Wisconsin’s new laws seems destined for that as well.
The courts have played a central role in a larger ideological split that has unfolded across the state — which both Obama and President Trump carried and where its two US senators, Ron Johnson, a Republican, and Tammy Baldwin, a Democrat, could not be more different.
With conservatives holding a one-vote majority, the state Supreme Court has also been at the forefront of a pattern Democrats say they have grown tired of: Republicans pass right-leaning policies despite protests, Walker signs them, and the judiciary upholds them, even if a local judge first expresses skepticism. (Walker’s opponents have had somewhat better luck in federal courts, where Holder’s group said it intends to act.)
“They’re acting as a rubber stamp,” Matthew Rothschild, executive director of the liberal Wisconsin Democracy Campaign, said of the state Supreme Court. He called the judiciary “a crucial lever of power for Republicans” that had allowed the “Walker wrecking crew” to advance its policies.
The court’s ideological divide is clear, but many conservatives in the state reject the rubber-stamp argument.
“I don’t think it’s fair to say that so-called liberal judges will always vote for what Democrats want or so-called conservative judges will always vote for what Republicans want,” said Rick Esenberg, a lawyer who is president of the Wisconsin Institute for Law and Liberty, a conservative group that supported several of the measures Walker signed Friday.
One example: The Wisconsin Supreme Court this year sided with Tony Evers, the state schools superintendent who is now the governor-elect, when he wanted to hire outside lawyers for a lawsuit. Evers, who narrowly defeated Walker in November, is a Democrat.
Still, Walker has repeatedly received friendly rulings from the state’s highest court. And he has expressed confidence that the new measures will ultimately pass legal muster, even if a local liberal judge strikes some of them down for a time.
In 2014, state Supreme Court justices validated limits on public sector unions that were Walker’s signature policy and made him a national figure in the Republican Party.
That same year, the court upheld a voter identification law.