What the Rule of Law Does Not Look Like: Impeaching a Supreme Court Justice When She Takes Office

by Neil H. Buchanan

One of the safest bets in recent years was that Republicans would conveniently drop the pretense that they believe in states' rights as soon as their manufactured Supreme Court super-majority handed them their long-sought repeal of Roe v. Wade.  Although the Dobbs majority's opinion claimed to be turning the issue back to the states, it was long obvious that the radicalized anti-women's-freedom movement would look for ways to nationalize bans and create ever more hurdles for women seeking to exercise their reproductive rights.

And that is what Republicans have done.  They are trying to prevent citizens of red states from traveling to blue states, to penalize friends and good Samaritans who help those pregnant people run the gauntlet of expensive and dangerous perils that Republicans are constantly erecting and updating, and so on.  And as Professor Dorf's column yesterday explained, Trump-appointed judges are now going completely rogue, trying to nationalize a ban on an FDA-approved (and unusually safe) drug that is used for abortions -- abortions, by the way, that take place long before an embryo becomes a fetus.  It will only get worse from here.

My focus today is not on abortion, however, but on the rule of law.  In particular, I want to focus on how the Republican Party has perfected the dark arts of using the legal system for their own ends and then making it impossible for Democrats to undo what has been done.  Even so, the current leading example of this dirty trick does derive in large part from the politics of abortion.

Simple question: Can Republicans in the highly-gerrymandered Wisconsin legislature impeach the person who won a landslide victory in a statewide Supreme Court election last week -- a person who is likely to join with other non-Republicans on that court to end gerrymandering and to invalidate a statute that purports to ban abortion in the state?  Simple answer: It is unclear, but if they can figure out a way to do it, why would Wisconsin's Republicans not try?  Restraint?  Respect for the voters?  Please.

Janet Protasiewicz is a Milwaukee County district court judge who won election over an angry right-winger in what was supposed to be a hair's-breadth statewide Supreme Court election on April 4, giving the wing of Wisconsin's highest court that is not composed of movement conservatives a majority.  (Although the shorthand for her wing of the court is "liberal," I think it is more accurate to say that they are simply people who have not imbibed of the right's Kool Aid.)  Rather than a too-close-to-call long night of stressful vote watching, Protasiewicz won by almost 11 points in a state that Joe Biden had won by 0.62 percent in 2020.

Protasiewicz's win was notable as a national political barometer because it became yet the latest example of how people who typically vote a straight Republican ticket have responded to the post-Roe reality by saying, "You know what, maybe women should not be subject to state-enforced pregnancy."  And even as some loud voices on the right have started to say that maybe Republicans need to find a way out of their vote-losing extremism on abortion, Republicans have decided not to try to figure out ways to win elections but instead have redoubled their efforts to make it immaterial when they lose.

I do not have access to the latest news about Wisconsin Republicans' plans, but an excellent article in Salon last week reported on discussions there about possibly impeaching Protasiewicz as soon as she takes office.  The state constitution sensibly includes a provision allowing judges to be impeached and removed from office.  In place of the federal constitution's "high crimes and misdemeanors" standard, Wisconsin's founding document allows impeachment "for corrupt conduct in office, or for crimes and misdemeanors."  Importantly, this can be done with a simple majority in the Assembly.

Salon reports that the state Senate's Republicans are disavowing any plan to impeach Protasiewicz, with the majority leader quoted as saying that "we're not going to use impeachments to overturn elections or anything like that.   To impeach someone they would need to do something very serious, so no, we are not looking to start the impeachment process as a regular occurring event in Wisconsin."  So, good news.

But the question is why the state's Republicans are not going straight for the jugular.  The answer is provided by University of Wisconsin law professor Miriam Seifter, who is paraphrased in the article as saying that "if there were a dispute over the Legislature's handling of an impeachment[,] the Wisconsin Supreme Court would decide [the matter], as it has in other states."  So, if the Assembly were to impeach Protasiewicz (or any other member of the now-majority group on the state's high court), the impeached justice would go through the court system and argue that the grounds for the impeachment do not amount to "corrupt conduct in office, or ... crimes and misdemeanors."

Normally, a case in which a judge or justice is the party in interest would go forward with that jurist recusing themselves.  But this is not normal, and why would any of the affected justices play by the old rules?  What might look like restraint on the part of Senate Republicans, then, more likely reflects a realpolitik sense that they will lose, so why not virtue-signal in the meantime by saying things like the majority leader said?

Too cynical?  This is the same state in which the self-created Republican majorities in the state legislature responded to the election of a Democratic governor by stripping the governor's office of powers that he might use in a way that they did not like, with outgoing never-President Scott Walker signing the legislation before checking out of the governor's mansion.  That action was not reversible, because the new governor would never be able to get the legislature (which, again, is perma-majority Republican due to some of the most aggressive gerrymandering in the country) to send him a bill to reinstate the status quo ante.

This is also what state-level Republicans did in Michigan several years ago, where the damage was easier (but by no means easy) to undo because that state has a law that prevents gerrymandering.  And big surprise, confronted with unrigged districts, the Democrats won back majorities in that liberal-leaning state.  That is also what Republicans in North Carolina did when their candidate lost the governor's chair to the current Democratic incumbent, stripping him of powers for entirely partisan reasons.  North Carolina, meanwhile, now has veto-proof majorities in both of its gerrymandered houses, with a Democrat from a blue state senate district having been induced to switch parties.

In other words, when Republicans have a chance to do something that changes the rules of the game to turn their losses into wins, they are not slowed down by appearances or shame.  Sometimes, they indulge their worst fantasies even when they cannot win, such as Tennessee's state House Republicans booting two Black Democrats from the chamber last week, only to have those men returned to office.  It is not even clear what the point of ejecting them was in the first place, given that their votes were not going to force the legislature's Republicans and their governor to do anything about gun violence in Tennessee.

That Wisconsin's Senate Republicans might not go down this road, then, is similar to the point I made last week about the US Senate, where Mitch McConnell and most of his cohort decided on January 6, 2021 not to vote to block the counting of electoral votes.  Were they being statesmen?  I guess that might be possible, but given their track record, it seems much more likely that they would have taken the win if it were there for the taking.  With Democrats in the majority in the US House at that time, however, there was no point.

And this brings us to one of the most consequential aspects of the Wisconsin result.  That purple state's eight US House seats are currently occupied by six Republicans and two Democrats.  With Protasiewicz on the bench, we might expect to see Republicans lose one, two, or three of those seats in 2024, after the gerrymandered lines are redrawn.  That, in turn, could mean the difference between Democratic and Republican control of the US House on January 6, 2025, which would (because the US Senate is all but lost for Democrats next year, based purely on which seats are up for election) be the difference between my nightmare scenario of two Republican-dominated houses finding "irregularities" in swing states and thus handing the presidency to their candidate, or instead another (reality-preserving) stalemate on the 6th.

Certainly, Republicans are now counting Wisconsin as a lost swing state, with some of the most aggressive conservative commentators even saying that there is no longer a path to 270 electoral votes for Republicans.  This is quite a concession, of course, given that it says that they would need to count on the Wisconsin Supreme Court intervening after Election Day in 2024 to declare the Republican the winner and steal those ten electoral votes.

Again, the larger issue here is the rule of law.  When people are able to rewrite the rules in a way that uses the old rules to create new rules that cannot be surmounted by normal political activity, you are no longer living in a constitutional democracy.  Republicans, in full projection mode, say that when Democrats change the rules in ways that help Democrats, it is the Democrats who are undermining the rule of law.

The difference, as if I even need to say it, is that the rules that the Democrats put in place do not pull the ladder up behind them.  As in Michigan, they win when the rules favor neither side; but they need to change the rules back in a way that, in that singular moment, look favorable to Democrats.  There truly is a difference between rigging and un-rigging the rules.  (See also "packing" the US Supreme Court.")  As ever, that is not a claim that Democrats are pure of heart in all things and are above reproach.  It merely means that there is a convergence between what is good for them politically and what is right as a matter of the rule of law.

And again, if Wisconsin's Republicans can figure out a way around the problem described above and can impeach non-conservative justices, hold onto your hats.  They have shown again and again that power is the only thing that they care about, no matter how they get it or what they must do to keep it.