A Conservative Justice in Wisconsin Says He Followed the Law, Not the Politics

Justice Brian Hagedorn of the Wisconsin Supreme Court is a veteran of the last decade’s fiercest partisan wars.

As chief legal counsel of Gov. Scott Walker, a Republican, Justice Hagedorn wrote the 2011 law that stripped public-sector labor unions of their collective bargaining rights. Then in 2019, he won a narrow election to a 10-year term on the Supreme Court with backing from the state’s Republican media and grass-roots networks.

But Justice Hagedorn, a member of the conservative Federalist Society, who in 2016 founded a private school that forbids same-sex relationships among its employees and students, is no longer a darling of the right. In a series of 4-3 decisions in recent months, he sided with the court’s three liberal justices to stop an effort to purge 130,000 people from the Wisconsin voter rolls, block the Green Party candidate and Kanye West from the general election presidential ballot and, on two separate occasions, reject President Trump’s effort to overturn President-elect Joseph R. Biden Jr.’s victory in Wisconsin.

Justice Hagedorn has in recent days found himself at odds not just with his political base but with his fellow conservative justices, who have spared little expense in showing their anger at him in judicial dissents defending Mr. Trump’s case.

He discussed the experience in an interview on Friday with The New York Times. The following is an excerpt from the conversation, condensed and lightly edited for clarity.

What is your response to Wisconsinites who supported you when you ran for the court and now are deeply unhappy with some of the decisions you’ve made?

When I ran, I was pretty consistent that I believe deeply that law and politics are not the same thing. Most of us probably have some hope that our preferred candidate or our preferred policies, that the law runs in the same direction, but that isn’t always the case. And I said I was going to be a textualist and an originalist. I believe very deeply in those things.

And I think my decisions have reflected that. And I made clear even when I was running that I would make decisions that I’m sure some folks, certainly conservatives, may not like from a policy outcome and that when I do, I was just following the law. People should know that.

Do you feel any sort of kinship with Republican officials in states like Arizona and Georgia who have had to defend their election system against a resistance from conservative grass roots?

The hard thing to do, the courageous thing to do, is to fulfill your oath, especially when you know it’s going to make your political supporters unhappy. It doesn’t matter what your role is, whether you’re the Republican secretary of state of Georgia or any other elected official.

So I’m not unaware of the political criticism that some of my decisions would bring. I’m well aware of that, and so I think it’s a wonderful reflection of the strength of our country when people can do what they think is right and fulfill their oath as they understand it regardless of what political pressure may come their way.

How have you become aware of some of that criticism?

Talk radio in Wisconsin, particularly on the conservative side, is very prominent. I turned on the radio one morning driving to work and heard what a horrible person I was. So it’s hard to miss it.

Yes, I’ve been called a traitor. I’ve been called a liar. I’ve been called a fraud. I’ve been asked if I’m being paid off by the Chinese Communist Party. I’ve been told I might be tried for treason by a military tribunal. Sure, I’ve gotten lots of interesting and sometimes dark messages.

Does that change your approach to your job at all, having that sort of feedback?

Maybe members of the public forget this because their civic culture really just doesn’t know how to debate issues in a very healthy way right now. And there is sort of this tribal understanding that either you’re with us or you’re against us.

I’ve got five young kids and, sure, there’s certain uncomfortableness, too, when your child asks you whether it’s OK to play in the front yard or whether they should just stay in the backyard.

What did you think about the broader conservative push led by the president to change the results of the election and the widespread rejection of that from courts at multiple levels?

I can’t speak to all the other cases out there, but certainly in the cases before us, they were asking us to throw out those elections. There was certainly nothing in the nature of the law or the facts that supported getting anywhere close to that, and I communicated that clearly. And I do think if you’re going to make a claim like that, you better have your evidence and you better have the law on your side and make your case. And at least in the cases before us, that wasn’t the case.

Why did you think then that if it was so cut and dried for you, your conservative colleagues on the court saw it differently?

I can’t speak for them on those issues. To me there was a pretty clear application of well-settled law and that’s how I moved forward in deciding those issues.

The dissents in particular seem very personal in their unhappiness about what the majority decision was, and I was curious, behind the scenes, what those debates or arguments were like.

Each justice needs to decide, and this is true at every court, how they want to explain their thinking and their rationale to the wider world around them. Sometimes we all do it passionately. I think every judge or justice has at times written passionate dissents and disagreements, and that’s a normal part of appellate judging.

How did you vote in the November election?

I got the absentee ballot, and I mailed it in.

Were you generally comfortable with that process?

I was.

Can you tell me if you voted for President Trump?

I would not want to say anything like that on the record.

Why not?

No. 1, who I voted for didn’t impact my decision and wouldn’t impact my decision. No. 2, I don’t think it’s appropriate for judges to take positions on partisan candidates for office. We also have canons of judicial ethics on not endorsing candidates. We’re a nonpartisan court. I mean, I certainly was elected with the support of many conservatives, but I am not a Republican justice on the court.

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