Ever since Governor Scott Walker imposed his anti-union legislation on Wisconsin, the state has become exceptionally polarized. This polarization is reflected in the current race for Supreme Court. Once again Wisconsin is seeing massive spending from outside groups in a race that is officially nonpartisan.

The 2011 Supreme Court race between incumbent Justice David Prosser [3] -- who was formerly a GOP lawmaker in the state -- and challenger JoAnne Kloppenburg became a referendum on Walker's controversial Act 10, with record-breaking spending [4] by groups like the Koch-linked Citizens for a Strong America, the powerful Wisconsin Manufacturers & Commerce, the Wisconsin chapter of Club for Growth, and the union-backed Greater Wisconsin Committee. Prosser ultimately won in a narrow victory after the last-minute discovery of uncounted votes in heavily Republican Waukesha County.

Club for Growth is the Big Spender in Wisconsin Supreme Court Race

Now, another member of the court's 4-3 right-wing majority, Justice Patience "Pat" Roggensack, is up for re-election. Roggensack is being aided by the same outside groups that aided Walker in advancing some of his most controversial proposals. The far-right independent expenditure group Wisconsin Club for Growth spent an eye-popping $300,000 on television ads supporting Roggensack [5] during the primary. Club for Growth was responsible for more than 75% of the nearly $400,000 in TV spending in the primary race, and more than 80% of the total ad spots, according to TNS Media Intelligence/CMAG estimates released by the Brennan Center for Justice and Justice at Stake.

In addition, Roggensack is being handed big checks by some [6] of the [7] same [8] wealthy donors that gave to Governor Walker in his recall campaign [9], such as Beloit billionaire Diane Hendricks and David Uihlein, Jr., as well as [7] a variety of PACs and local Republican Party chapters.

Her opponent, Marquette Law Professor Edward Fallone, has been endorsed by a host of progressive organizations [10], but lags well behind in fundraising. If Fallone took the majority the court could do a virtual 180 on some of the state's most contentious issues [11]. But, the race thus far has focused on the issue of mending a court that is as dysfunctional and divided as Wisconsin politics.

Fall Out From Physical Altercation Still Debated

A few months after the nail-biter of a judicial election in 2011 [12], an already-divided court became even more so when the Court's four-justice majority rushed to issue a decision [13] upholding Walker's Act 10 (by striking down a lower court decision that had invalidated it on procedural grounds). As the justices had a heated debate about the ruling privately in chambers, recently-reelected Justice Prosser put his hands around Justice Ann Walsh Bradley's neck in a manner she described as "choking." Six out of the seven justices witnessed the physical altercation.

The nonpartisan Wisconsin Judicial Commission filed an ethics complaint [14] against Justice Prosser over the incident, but because the Wisconsin Supreme Court is the only governing body that can make a final ruling on this issue, the matter is stalled as the Court cannot reach a quorum [15]. Prosser asked every member of the court to recuse themselves from the case; Roggensack was the first to do so [16], followed by two other justices [17], dampening any hopes of a resolution.

Further division within the court is evidenced by a February 13, 2013 memo [18] from Justice Bradley where she expresses continued concerns over her safety. The memo, where she too recuses herself from deliberations over the choking incident, discusses the court's dysfunction, and singles out Justice Roggensack for denying it.

Roggensack had made a series of public statements [19] where she discounted the court's internal conflicts by calling it "just a bunch of gossip" and that the court was "doing just fine." Bradley's memo refutes these statements by detailing how she and Chief Justice Shirley Abrahamson had been forced to lock their doors and request additional security [20] from the Capitol Police even before the choking incident, due to concerns over what she describes as Justice Prosser's "history of abusive behavior."

Roggensack, for her part, has urged her colleagues [21] to join her in signing a joint apology letter [22] to the citizens of Wisconsin regarding the incident between Prosser and Bradley, which purports to be [23] an alternative to the ethics case finding a resolution. Her opponent Fallone has criticized the letter [24], as well as her decision to recuse herself from the case, stating "[i]t is obvious that her unnecessary recusal in the case continues to be an obstacle to the resolution of the matter."

New Recusal Rules Allow Justices to Hear Cases Brought by Campaign Contributors

The ethics case against Justice Prosser is not the only recusal issue in this election [25].

Prior to 2010, a justice who received campaign contributions from (or benefitted from independent expenditures by) an individual or entity involved in a proceeding would be expected to recuse from their case. In 2010, the four-justice majority issued new rules stating that these facts alone would not require recusal. Fallone has claimed Roggensack "bears a large part of responsibility for pushing through" the rule change, which he has deemed the "Roggensack Rule." [26] In a release, Fallone says it "allows interest groups with cases before the court to make campaign contributions to justices."

With campaign contributions in Wisconsin Supreme Court races reaching new highs, these looser recusal rules are likely to have an impact on future cases and the public's perception of a fair and impartial justice system.

Roggensack has also been criticized for her refusal to recuse herself in cases where her impartiality might have been compromised in other ways. The Wisconsin Center for Investigative Journalism reported that Roggensack ruled in a case [27] involving an attorney who once represented her, after recusing herself the first time around. There was also controversy surrounding a criminal case in which she denied the defendant's motion to recuse herself [28] which was requested because she ruled on the co-defendant's case at the appellate level.

Many other controversial cases are almost certain to find themselves before the Wisconsin Supreme Court, including voter ID (which has been blocked by two lower courts), Act 10, and the newly-passed mining bill [29]. Other challenges may also come to the Court as the legislature considers new proposals to restrict voting and expand voucher schools. With the ideological balance of the court up for grabs, the stakes are high for the April 2, 2013 election.

---

Brendan Fischer contributed to this article.