MADISON, Wis. — On Tuesday, the Republican-majority Wisconsin Legislature requested that Justice Janet Protasiewicz, a liberal member of the state Supreme Court, recuse herself from an important case that aims to challenge a law enacted in 2011. This law significantly curtailed collective bargaining rights for a large portion of state employees.
If Justice Protasiewicz chooses to recuse herself, the Supreme Court would remain evenly divided with three liberal and three conservative justices. This case carries considerable weight for union rights in Wisconsin, a state known for being a battleground in labor relations. Recently, a Dane County Circuit judge ruled that much of the 2011 law violates equal protection rights as outlined in the Wisconsin Constitution. The judge pointed out that the law unfairly categorizes public employees into two groups: “general” and “public safety” employees. As a result of this ruling, all public sector workers who previously lost collective bargaining rights would see their rights restored to what they were prior to the law’s passage.
However, the judge’s ruling is currently on hold as the case is being appealed. The unions representing school workers that initiated the lawsuit have petitioned the Supreme Court to hear the case directly, rather than going through the appeals process. The Wisconsin Supreme Court, which currently has a liberal majority of 4-3, has yet to determine if it will accept the case.
The law in question was put in place amid widespread protests that occurred 14 years ago, placing Wisconsin at the forefront of a national conversation regarding labor rights. This contentious debate was closely associated with former Governor Scott Walker, whose actions sparked a recall campaign and later influenced his 2016 presidential run. The implementation of this law has significantly reduced union membership across the state.
Justice Protasiewicz, the newest member of the court, campaigned in 2023 as an opponent of the law, referred to as Act 10. Her recent election restored a liberal majority to the court for the first time in a decade and a half. However, that majority will be contested during the upcoming April 1 Supreme Court election for the seat of a retiring liberal justice.
Throughout her campaign, Protasiewicz expressed her belief that Act 10 is unconstitutional and indicated in conversations that she might consider recusing herself from any case that challenges the law. She was actively involved in protests against Act 10 and signed the petition that sought Walker’s recall.
Key Republican lawmakers, including Senate Majority Leader Devin LeMahieu and Assembly Speaker Robin Vos, asserted that it would be “right and ethical” for Protasiewicz to step aside. They referenced her campaign statements about her union ties, her personal belief in the law’s unconstitutionality, and her opposition to Walker as reasons for their request.
The motion lodged by the Republicans contended that her involvement could create an impression that she has already formed an opinion regarding the case. Protasiewicz did not provide a comment when approached about her recusal via email, leaving the decision entirely in her hands.
Jacob Karabell, representing the unions opposing the law, dismissed the recusal request as unfounded, claiming it was merely an attempt to delay a conclusive verdict. Significantly, Protasiewicz is not the only member of the court who may face a potential conflict of interest. Conservative Justice Brian Hagedorn previously served as the chief legal advisor to Walker and played a role in crafting Act 10. During his successful campaign for the court in 2019, he refrained from committing to recusal should a case related to Act 10 arise.
While no motion has been submitted to request Hagedorn’s recusal, Democratic leaders in the legislature have urged him to do so. Hagedorn has not yet responded to inquiries seeking his take on the situation. If both Protasiewicz and Hagedorn were to recuse themselves, the remaining justices would tilt the scales in favor of the liberals with a 3-2 advantage.
Supporters of Act 10 argue that it has empowered local governments to manage their labor forces more effectively, enabling them to cut costs. They contend that repealing the law—which assists schools and municipalities to increase funding through higher employee contributions—could lead to financial instability for these entities. Conversely, Democratic critics maintain that the law has had detrimental effects on schools and other public services by stripping employees of their collective bargaining rights regarding compensation and workplace conditions.
This article has been revised to clarify that Hagedorn successfully ran for the court in 2019, not in 2015.
