«The media tends to focus on the federal judiciary, and particularly the U.S. Supreme Court, but state courts handle more than ninety per cent of cases in the American judicial system. “The whole country was distracted, in some ways, by the successes of the Warren Court in the sixties,” Jeff Mandell, a co-founder of Law Forward, a nonprofit progressive law firm in Madison, told me. “You had organizations like the A.C.L.U. and others that were built up largely around going to federal court for relief. At some point, the right recognized that state courts can be much more powerful. Federal courts are courts of limited jurisdiction; they only hear certain kinds of cases. State courts can hear and decide anything. They also get a lot less attention, so they can radically change what’s happening in a state or region of the country.”
The U.S. is one of the only countries in the world to hold judicial elections, and these elections are increasingly dominated by dark-money groups. In 2014, the Republican State Leadership Committee launched a project called the Judicial Fairness Initiative, which focussed exclusively on winning state judicial elections. Last year, it backed winning conservative candidates for three Supreme Court seats in Ohio and one in North Carolina, flipping control of that Court in a change with enormous implications for abortion access and gerrymandering.
Wisconsin is arguably the country’s most pivotal swing state, so the election has national implications, too. “The United States has this unique-in-the-world system where an individual state can tip the Presidential election, because of the Electoral College,” Ben Wikler, the chairman of the Wisconsin Democratic Party, said. “For better or worse, Wisconsin seems permanently poised right on the fulcrum. That means that tiny shifts and laws in this one small Midwestern state can ripple out to affect the whole future of American democracy.”
In 2019, the U.S. Supreme Court had ruled that, because gerrymandering involved “political questions,” federal courts could not offer a remedy. In the majority opinion, Chief Justice John Roberts encouraged those seeking redress to do so at the state level. “Roberts expressly invited people to take these cases back to your states and see if your state constitution provides you a remedy,” Mandell told me. “That’s what happened in Pennsylvania. That’s what happened in North Carolina. People brought these cases, and the state courts protected them.”»