It sure has been an eventful few weeks for Wisconsin Supreme Court Justice Brian Hagedorn.
The conservative jurist who has defied conventional wisdom emerged as the key swing vote in four cases launched by President Donald Trump and his allies to overturn November’s election results.
In each case, Hagedorn joined the court’s three liberals to block the unprecedented effort.
He now finds himself in an unusual position. Liberals who may have vehemently opposed him when he ran and won the seat in 2019 are singing his praises.
“It’s like the Twilight Zone. I’m not going to lie,” Hagedorn told the Milwaukee Journal Sentinel in a Friday interview.
And he’s also taking some blasts from the right.
WISN-AM (1130) talk radio host Dan O’Donnell, writing for the conservative MacIver Institute, accused Hagedorn of becoming “the very sort of ‘Living Constitutionalist’ that he campaigned against.”
“I’m no less of a card-carrying member of the Federalist Society then I was before,” Hagedorn said, emphasizing his adherence to conservative judicial principles.
Hagedorn said he remains a committed “originalist and textualist.”
When Hagedorn was elected to the state Supreme Court in April 2019, it was anticipated that he would fit comfortably with the court’s majority conservative wing.
He certainly had the conservative credentials: a stint as a law clerk for then-Justice Michael Gabelman and a posting as chief legal counsel for then-Gov. Scott Walker, a Republican.
And so far, on many of the issues that have split the court, he has ruled with the other conservatives to create a four-vote majority.
“I understand the media focuses on, here’s the philosophical division of the court,” he said. “And quite frankly, oftentimes, there’s maybe an over obsession with that question and maybe even an over obsession with my role in that.”
Hagedorn ruled with conservative Justices Patience Roggensack, Rebecca Bradley and Annette Ziegler in several high-profile cases.
Two big ones: blocking Gov. Tony Evers’ push to shut down the spring elections because of the coronavirus pandemic and upholding many of the Legislature’s lame-duck laws that limited the power of the Democratic governor and attorney general.
“Sometimes, I wonder and am concerned if there’s too much political intrigue with those things,” he said in the Journal Sentinel interview.
He said in the last term, the number of cases decided on the “philosophical division the media often reports on is something like 13%. In fact, 40% of our cases were unanimous.”
In the post-election legal skirmishing, though, it was Hagedorn who played a pivotal role, joining the court’s three liberals, Justices Rebecca Dallett, Ann Walsh Bradley and Jill Karofsky. The Bradleys are not related.
In one case, filed by the Wisconsin Voters Alliance, which maintained the election was conducted improperly, Hagedorn called the group’s request to throw out nearly 3.3 million votes, a “real stunner.”
“We are invited to invalidate the entire presidential election in Wisconsin by declaring it ‘null’ — yes, the whole thing,” he wrote. “This is a dangerous path we are being asked to tread. The loss of public trust in our constitutional order resulting from the exercise of this kind of judicial power would be incalculable.”
And around an hour before the Electoral College was to meet this past Monday, Hagedorn and the liberals ruled 4-3 to reject a Trump lawsuit and uphold Biden’s win in the state.
Hagedorn wrote that Trump’s challenges to the state’s voting laws “come long after the last play or even the last game” and that the president’s campaign “is challenging the rulebook adopted before the season began.”
Hagedorn can’t recall when he came up with that rulebook reference but said “the truth is I did watch the Packer game while I was revising.”
“I work very hard to write as clear as I can,” he said. “And I like to read it out loud. I try writing in a way the average person will understand.”
On the election cases, Hagedorn said, “There were obviously different cases in front of us. But as I expressed, those who were attempting to throw out the election in a couple of cases certainly didn’t have anything close to the law or the facts supporting that.
“And as I made clear, I think the well-established law didn’t entitle the Trump campaign to the relief it was seeking here.”
Hagedorn said if people are going to make a claim of election fraud, “you have to have the facts and the law on your side. They didn’t, in the cases before us, as I expressed.”
Hagedorn’s rulings may have disappointed Republicans but he urged people to remember “law and politics are not the same thing.”
“What we do in the court system is to apply the law,” he said. “When I was campaigning for office, you can find it on my campaign literature, that partisan politics has no place at the Wisconsin Supreme Court. It said you should not be able to predict how a justice will vote on the basis of their personal politics. I was very clear about that and that I would issue decisions that at times some members of the conservative side politically wouldn’t like. And when I did so they should be reminded I was following the law.”
‘We’re not on a team’
Hagedorn said he is doing “exactly what I said I would do. My decisions have been based on the law, regardless of my personal politics, regardless of my views on any particular candidates.”
He declined to state who he voted for in the presidential race, explaining, “People shouldn’t think that has anything to do in the way we decide things.”
“There’s a reason why Wisconsin has a nonpartisan judiciary,” he said. “It’s because we’re not on a team. We’re not on a tribe. We’re there to be on the sort of law team.”
Since the decisions were reached, Hagedorn said he has received a number of messages from people who were appreciative but also “lots” of crude, negative and angry comments by email, text and voicemail.”
Hagedorn said one person, asked him if he had been “paid off by the Chinese Communist Party.”
“It’s sad and unfortunate,” Hagedorn said. “Every one of us who steps into leadership, we know what we’re getting ourselves into, to some degree. But remember that we’re all just people. Every one of my colleagues on the Wisconsin Supreme Court is there because they believe what they’re doing and trying to do what they think is right.”