Schimel: Current Supreme Court majority is dangerous

In announcing his intention to seek a seat on the state Supreme Court earlier this year, Waukesha County circuit judge and former state attorney general Brad Schimel said his mission was to restore objectivity and integrity to the high court, something he said was lacking with the current majority.

In a recent interview with The Lakeland Times, Schimel elaborated on that mission, saying the court was now politicized and the court majority has no qualms about writing law — something he sees as a threat to democratic institutions.

The election for the seat held by the retiring justice Ann Walsh Bradley will be held next spring. Schimel is running as a conservative. So far, one liberal candidate, Dane County circuit court judge Susan Crawford, has announced her candidacy.

Specifically, Schimel says the four progressive justices on the court now intend to do what they want, whether it’s dealing with Second Amendment rights or abortion or election integrity, and he says that concerns him deeply.

“I think that the four who are running the Supreme Court in Wisconsin right now are going to do what their will is,” Schimel told The Times. “That’s why I think they’re so dangerous.”

However, Schimel said the political and partisan behavior of the court is part of a larger problem in state politics — the inability to compromise and to understand the other side.

“I think that things like concealed carry and school choice, and you can go down the list of conservative reforms, those are all legislative determinations,” he said. “If you want to change them, you have to do it that way.”

But, Schimel said, Republicans in the legislature haven’t been able to accomplish much of anything because Gov. Tony Evers has issued more vetoes than anybody in the history of Wisconsin. Then, too, the legislature and the governor aren’t talking with each other, unlike when former Gov. Tommy Thompson was in office.

“Tommy Thompson got school choice passed, he got truth in sentencing passed, he got workfare passed, all with Democrat control of both houses of the legislature because he went to them and found out what their priorities were,” he said. “He talked about his priorities and they found a way to both accomplish some of the things that were most important to each of them.”

There’s nobody doing that now, Schimel said.

“They don’t even talk to each other,” he said. “I’m disappointed in the political system. I’m disappointed in the primary system now where candidates who are the most extreme on both sides win the primaries, and then they virtually promise their supporters that ‘I will not talk to the other side. They’re the devil. I won’t ever speak to them. I won’t ever compromise.’ And I think it is making it more difficult for our country and our state to move forward.”

So it’s not surprising in such an atmosphere to see the Supreme Court coming with an agenda, Schimel said, and the circuit judge also said it was fair to say that everything that comes before the court at this point is fair game to be politicized.

Eminent domain and property rights

During the interview, Schimel addressed private property rights and several recent Supreme Court decisions affecting them, including eminent domain.

In one of those decisions, Sojenhomer LLC v. Egg Harbor, the court majority decided that public sidewalks are not “pedestrian ways.” The decision was a setback for a brew pub and restaurant owner because, by state law, land cannot be taken through eminent domain to build pedestrian ways. According to the court, though, a sidewalk is not a pedestrian way — the latter defined statutorily as “a walk designated for the use of pedestrian travel” — so the ruling paved the way for the village of Egg Harbor to condemn part of the pub property to build a sidewalk.

Schimel said he was flabbergasted by the determination that a sidewalk is not a “pedestrian way.”

 “I am absolutely dumbfounded by the Egg Harbor decision,” he said. “My first reaction was thinking of that old joke where somebody said, ‘well, if you don’t like the way I drive, stay off the sidewalk’ because apparently sidewalks are open for anything.”

Eminent domain in general should be constrained, Schimel said. 

“There are private property rights,” he said. “One of the principles this nation was founded on was private property rights, but when government has a very high, a very strong basis for something in the public interest, [eminent domain is] okay. The statutes and the case law provide for yielding to that.”

In Egg Harbor, Schimel said he guessed that having the sidewalk run down that side of the street to get from a trailhead to the beach was just such an important issue. And Schimel said there was a backstory, too.

“The guy who owned that brewery was the former village president who was tossed out by a write-in campaign,” he said. “And now you have the new village president who decides it’s going to have to be his land.” 

Interestingly, too, Schimel said, was the fact that the parties were not very far apart financially from making a settlement in the case.

“I think all of this litigation could have [been avoided],” he said. “Did the village spend that much money [the difference in its offer and the property owner’s demand] on attorney’s fees that maybe they could have just paid him and then this all would have gone away? There’s an awful lot behind the scenes in that case that is unsavory.”

Still, Schimel said, the case is instructive.

“I think it’s a good example where private property rights should trump unless there’s a very, very significant governmental interest or public interest, and that’s why I’m having trouble with that on the sidewalk case,” he said.

The bottom line is, Schimel said, eminent domain should be used very cautiously.

The best and the worst Supreme Court decisions

Reflecting on state Supreme Court decisions in the recent past, Schimel didn’t think there was any one case that could be called the best or the worst of the bunch, but he did manage to find one in each category that he said stood out.

“I think one of the worst decisions they made was to not take up the Green Party case before the 2020 election,” he said. “By letting the WEC decision stand without review by the court, they kept a major political party off the ballot.”

In the case, the Wisconsin Elections Commission (WEC) had denied the Green Party ballot access, and the party’s presidential candidate, Howie Hawkins, filed a lawsuit. But, in a 4-3 decision, with justice Brian Hagedorn joining the court’s three liberals at the time, the court determined that the lawsuit had been filed too late to be heard.

In dissent, justice Annette Ziegler called the decision voter suppression.

“Instead of acting swiftly, the court ducks behind its self-created ‘it is too late’ timeline to preclude a party from ballot access and to prevent voters from choosing the candidate they believe is best qualified,” she wrote.

In his interview with the Times, Schimel agreed.

“Certainly there’s a valid argument to be made that perhaps, who knows, but perhaps historically the Green Party would take 35,000 to 45,000 votes,” he said. “It could have been the difference in the election. I understand that the theory behind [not taking the case] was that, ‘well, it’s getting so close to the election. We don’t want to be involved in deciding an election.’”

On the other hand, Schimel countered, their decision not to take the case might have decided the election anyway. 

“So I think that’s among the worst, and look at what’s happened in the intervening four years,” he said. “There’s all this fighting. There’s this distrust in elections. I think that was a terrible decision to not take it up.”

Ironically, Schimel said one of the best recent court decisions was one in which it overturned his own ruling. In that case, Schimel was not the trial judge but presided over the post-conviction motions in which a person contested that his most recent OWI conviction was his seventh. The number was important because OWI mandatory minimum penalties increase after six.

The crux of the defendant’s argument was that one of his previous convictions was actually only a refusal of a chemical blood draw, for which his license was temporarily suspended. The defendant argued in court that the graduated penalties were unconstitutional because they meted out harsher penalties later because of an earlier exercise of his Fourth Amendment right to be free from unreasonable searches. 

The Supreme Court determined that the law was unconstitutional in part — specifically for imposing stiffer penalties by counting prior convictions based only on a refusal to submit to a warrantless blood draw, and Schimel said he was glad to see it because it was not his job as a lower court judge to decide the constitutionality of any law.

“That’s not the role of a circuit court judge,” he said. “That’s what the higher court does. Circuit court judges, you apply the law as it is. And so I did, the Supreme Court got the case, and reversed and ultimately found that that aspect of the implied consent law was unconstitutional, that it was government taking too much power for a person exercising a right.”

Schimel said he was a fan of that decision.

“It was a civil rights issue, a constitutional rights issue,” he said. “The implied consent law, I do think reached too far. It was a score for constitutional rights.”

The campaign

So far, Schimel is the only announced conservative and/or Republican in the race, and he believes it would be hard for any other candidate to make up ground, given an impressive array of endorsements and solid fundraising.

“Frankly, if anybody else got in the race, I’ve got 49 sheriffs that are publicly endorsing me, including three elected Democrat sheriffs,” he said. “There are others. There are more that will come in. We don’t even have all the Republicans confirmed yet.”

Schimel said those endorsements include both Oneida County sheriff Grady Hartman and Vilas County sheriff Joe Fath.

Fundraising is off the charts, too, Schimel said, having raised a record-shattering $769,000 by the June 30th deadline: “Nobody’s ever come close to that,” he said, adding that he is also on the road, going to all 72 counties in an aggressive grassroots effort.

“Coming into this week, I had campaigned in 48 counties,” he said. “This week, I’m going to knock off seven more. I’m back up in the Northwoods next week. I’ll get to all 72 counties. Whatever other conservative comes in, they have to try to catch up to all that and then overtake me. If they are thinking about it, they’re sitting in pit row looking for their car keys and I’m running laps. I mean, they can’t come back.”

Schimel said most major donors are on his side and have already given their maximum allowed contributions.

Still, the circuit judge said, while he is confident of fending off any other conservative in the nominally nonpartisan race, he can’t afford to take his foot off the pedal because his liberal opponent, Susan Crawford, is going to be well funded.

“Susan Crawford got in the race with three weeks to go before the June 30th deadline and raised $460,000,” he said. “I don’t know where that money came from, but $460,000 in three weeks, she’s going to be well-funded.”

Schimel said progressives do not want to lose their majority. To preserve it, they have to win because the progressives have only a 4-3 edge and the retiring justice, Ann Walsh Bradley, is on their side.

In the interview, the discussion shifted toward sitting justice Brian Hagedorn, who is often called a conservative but has become more of a swing vote on the bench, at least in high-profile cases.

When Schimel was attorney general and Hagedorn was at the time serving as a legal counsel to then Gov. Scott Walker, Schimel said the two did not always see eye-to-eye but that he had a good rapport with him.

“I’m hopeful,” he said. “I have a good working relationship with Brian. I hope I can convince him.”

In any event, he’s better than the alternative — a solidly progressive court, Schimel said, which is the situation now, and one in which Schimel said no judicial standard is being applied: “It’s completely political.”

What’s more, Schimel said, over the long haul Hagedorn has voted almost always with judicial conservatives.

“He’s been with the conservative majority somewhere about 90 percent of the time,” he said. “The times that he didn’t, it was a big deal, like the Green Party case, or whether WEC needed to purge those unused voter registrations. He joined with the liberals to say, ‘push this off until after the election.’ When it’s too late, you can’t undo the damage. So yeah, his problem is he’s picked cases that were really high profile and really impactful.”

Schimel said he wants the conservative majority to mean something when he’s elected and conservatives once again have that majority.

“I am going to need Brian to be part of that, so I’m going to say this, that I will work hard with Brian to see that we see the big picture and we have conservative majorities,” he said. “And I’m optimistic.”

Schimel did say he expected Crawford to stick with abortion as a progressive flagship issue, as justice Janet Protasiewicz did in her campaign.

“They’re already running things on social media saying that I’m going to take women back to the 1850s,” he said.

Still, Schimel says he sees the tide turning.

“We’re seeing things like the craziness happening with the Olympic games, that it’s causing people who have sat out the last couple of elections [to get involved],” he said. “People are frustrated with both sides and they’re sitting it out, and I think now our side’s starting to see the consequences of that, that we’re letting them win elections and they’re going crazy. They’re doing really bizarre things.”

Schimel recalled how he could see things changing in once solid-blue Kenosha. When he was running for attorney general, Schimel said, he attended events like Pints and Politics in Kenosha, even though for many years the county had voted Democratic.

“By then [running for attorney general], it wasn’t true anymore,” he said. “It was a purple county that you could take. I went to a Pints and Politics and there were 40 people at it, and that was like, this is a great night. It’s a great turnout. Look at this. Look at the energy on our side.”

But guess what, Schimel said.

“I did a Pints and Politics in Kenosha six or seven weeks ago on a Monday night,” he said. “There were over 140 people at it. To come out on a Monday night, that’s a good sign.”

The stakes are high, too, Schimel said. The bottom line is, the circuit judge said, our justice system is at risk. 

“If we don’t take back the Supreme Court next April, we’re not going to recognize this place,” he said. “We can’t have judges that are driven by their own personal agendas, and that’s what we do have. And if we don’t take it back next April, our next chance won’t be until April of 2028.”

They will have had a majority for five years by then, Schimel said.

“And the legislature and the governor, we see all too well the checks and balances they have on each other,” he said. “What is the check on the Supreme Court? If they just disregard the law, there is nothing that can stop them. The only check that ultimately exists over the court is their own respect for the rule of law — I know people are sometimes tired of hearing this rule of law stuff — but it still matters. It still matters.”

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.