Candidate Brian Hagedorn made a lot of promises about how judges should issue rulings that Justice Brian Hagedorn is completely ignoring.
December 9, 2020
Guest perspective by Dan O’Donnell
Wisconsin Supreme Court candidate Brian Hagedorn really, really hated judicial activism.
“Typically the way this plays out is that judges think they have some sense of what is just, some sense of what they think is right,” he said in a radio interview on Election Day 2019, just hours before voters would help him pull of an upset win over liberal opponent Lisa Neubauer. “And they don’t have the ability to set aside their own preferences and just follow the law.”
Hagedorn tapped into conservative resentment of the anti-constitutional activism that has become the hallmark of left-leaning courts, whose members substitute their own political preferences for a reliance on law and precedent.
“You know, it might be colored in legal language,” Hagedorn said of this policymaking from the bench, “but at the end of the day it’s often an exercise of raw judicial power.”
If elected later that day, Hagedorn promised, he would never ever wield such power and would never be so arrogant as to believe that his own personal opinion could ever trump that of the Wisconsin Constitution or settled state law. That was the sort of thing his liberal opponent would do.
“The philosophy that governs the [Supreme] Court has a huge effect on our freedom and on what kind of state we are,” he said. “I believe that my job as a judge is to say what the law is, not what the law should be; to uphold and enforce the Constitution as written.
“Judge Neubauer has a different philosophy: She has articulated a form of ‘Living Constitutionalism,’ this idea that the Constitution is a little bit malleable and a little bit out of date and that she’s wise enough—along with other judges—to rewrite it in their own image. We need to reject that. We need to reject the politicizing of the Court and judges who have political outcomes in mind.”
It was just what conservative voters needed to hear. It was the message that motivated them to turn out in droves that day. And Hagedorn didn’t mean a single word of it.
With his concurrence Friday in a challenge to the results of last month’s election, Hagedorn became the very sort of “Living Constitutionalist” that he campaigned against.
“I feel compelled to share a further observation,” he wrote. “Something far more fundamental than the winner of Wisconsin’s electoral votes is implicated in this case. At stake, in some measure, is faith in our system of free and fair elections, a feature central to the enduring strength of our constitutional republic.
“It can be easy to blithely move on to the next case with a petition so obviously lacking, but this is sobering. The relief being sought by the petitioners is the most dramatic invocation of judicial power I have ever seen. Judicial acquiescence to such entreaties built on so flimsy a foundation would do indelible damage to every future election.”
This, of course, is Hagedorn’s personal opinion. It is backed not by the U.S. Constitution, Wisconsin Constitution, federal or state statute, or prior judicial precedent, but his beliefs and convictions alone.
This is precisely the sort of arrogance that Candidate Hagedorn warned us about, and helps to explain why Justice Hagedorn so thoroughly mangled his interpretation of the Wisconsin Constitution and state law in a separate opinion just a day earlier.
In his concurrence, Hagedorn wrote that Wisconsin Statute § 9.01 would prohibit the Court from exercising “original jurisdiction” and hear an original action from the Donald J. Trump Campaign that was not first heard in a circuit court.
“All parties seem to agree that Wis. Stat. § 9.01 constitutes the ‘exclusive judicial remedy’ applicable to this claim,” he wrote. “After all, that is what the statute says. This section provides that these actions should be filed in the circuit court, and spells out detailed procedures for ensuring their orderly and swift disposition. Following this law is not disregarding our duty, as some of my colleagues suggest. It is following the law.”
It is, however, not following the Wisconsin Constitution. Hagedorn either forgot about or willfully ignored Article VII, Section 3, which explicitly provides that the Supreme Court “has appellate jurisdiction over all courts and may hear original actions and proceedings.”
As Justice Rebecca Bradley noted in her dissent, the plain meaning of Article VII, Section 3 means that Wis. Stat. § 9.01 “does not foreclose the candidate’s option to ask this court to grant his petition for an original action. Any contrary reading would render the law in conflict with the constitution and therefore void.”
Hagedorn’s interpretation, then, could not possibly stem from a reasonable reading of the statute in light of the Wisconsin Constitution; it was merely his own (spectacularly wrong) opinion masquerading as judicial review.
In other words, it was exactly what Hagedorn predicted would happen if he wasn’t elected.
Hagedorn has become the sort of justice he promised that he would never be—a constitutional illiterate who twists himself into laughably unsupported knots in order to arrive at the predetermined policy outcome he personally prefers.
What exactly would have been different had Lisa Neubauer defeated him? He made it seem as though his victory was the only thing standing between Wisconsin and judicial tyranny, and yet a year later—now that he doesn’t have to face voters again until 2029—he has fashioned himself the king of the Supreme Court.
As the Court’s swing vote, his is the last word on all matters of constitutional law, but his word is backed by nothing more than his own beliefs about what is right and what is wrong. The constitution is thus irrelevant; so are laws and precedent. The only things that really matters in Hagedorn’s kingdom are the crown’s wishes.
Heavy, though, is the head filled with such delusions—especially when they are supported by a unique kind of ignorant egotism that would so embarrassingly replace the plain language of the Constitution with a misinterpretation of state law.
This might have been humiliating for a self-proclaimed constitutionalist, but Hagedorn has proven to be anything but. He is, and has likely always been, nothing more than a politician willing to say anything on Election Day but spend every day after doing whatever he pleases.