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Wisconsin race puts renewed attention on state supreme courts and shadow dockets

SCOTT DETROW, HOST:

By now, you've likely heard about that big state Supreme Court race in Wisconsin last Tuesday. Milwaukee County Judge Janet Protasiewicz won the hotly contested race, defeating former state Supreme Court Justice Dan Kelly by a double-digit margin, giving Democrats effective control of the court. Results aside, the other top line from the election was how expensive it was. By some estimates, spending exceeded $40 million, making it the most expensive state judicial race in U.S. history. This monumental race and the politics that drove it had put renewed attention on state supreme courts and their role in deciding major issues like if a state's abortion laws or election maps are legal.

Another justice on Wisconsin's Supreme Court says there's another thing that we should be paying attention to - shadow dockets. That's when a court makes emergency rulings, often on important issues, without hearing arguments and with little explanation. Justice Rebecca Dallet says this is a growing trend and that it needs to be reformed. She's been a justice on Wisconsin's highest court since 2018, and she joins us now to talk more about this. Justice Dallet, welcome.

REBECCA DALLET: Thank you. Thank you for having me.

DETROW: So before we talk about shadow dockets, I do want to get into this week's election results. This was an expensive race, a partisan race. Did you have any concerns watching all that play out?

DALLET: Well, my biggest concern, frankly, was for democracy. And I think that democracy has, frankly, been saved. We were the court that, during Trump v. Biden lawsuits following the 2020 elections, three members of our Wisconsin Supreme Court were ready and willing to throw out almost a quarter-million ballots, which would have changed the electoral votes for Wisconsin and potentially impacted the entire nation and the race. So I think that my biggest focus was on democracy for that race.

DETROW: There was so much more attention on how Judge Protasiewicz was much more clear than judicial candidates usually are on how she would likely rule on key issues, on everything from abortion to gerrymandering. I'm curious, did you think that was a good thing or a bad thing?

DALLET: Well, I don't think she indicated how she would rule on issues. I do think she was more clear about the things everybody already was hearing. For example, her opponent was endorsed by very far-right groups, including groups that don't support the use of contraception. These types of groups have endorsed candidates in the past in Wisconsin. The only difference in this race was Judge Protasiewicz, now justice-elect was more clear, as I had been previously in 2018, of saying what her personal values were.

DETROW: And you think there's a difference between personal values and saying, this is how I would rule? Because people hear especially how she talked about abortion and think, OK, she's almost certainly going to overturn this 1849 law.

DALLET: Well, when you're forced to run for office...

DETROW: Yeah.

DALLET: ...Which we are - we're elected - you need to communicate with voters who you are. And I believe that doing so and telling voters who you are through communication of your values is important. And I think it's separate and apart from an ability to uphold the Constitution and the rule of law and be fair and independent.

DETROW: So let's shift gears, and let's talk about your piece in the Wisconsin Law Review. It's about what's known as a shadow docket. And as we said, this is when a court makes emergency rulings, often without hearing arguments and with little explanation. This has come to light in recent years at the U.S. Supreme Court, but I think some people might still be a little confused. Can you explain why these shadow dockets matter so much?

DALLET: Well, I think the best example of a shadow docket decision that people might understand and have heard about is the SB 8 decision. That was the Texas law that was brought up to the U.S. Supreme Court on a shadow docket. They wanted that law blocked. This is the law that prohibited abortions as early as six weeks. And the court, without hearing any oral argument, without full briefing, they denied that stay, essentially allowing that law to go into effect in Texas. And that was also in contradiction of what we all know, Roe v. Wade, which was decades and decades of a constitutional right being upheld. All of a sudden it no longer is, and it's done so by a shadow docket decision.

DETROW: The main focus of your article is that this is happening on state levels as well. Can you give us some examples of how frequently this is happening in Wisconsin and how serious the issues being decided this way are?

DALLET: Well, we have seen an uptick in the amount of shadow docket decisions. I focused my article on the ones that really impact people the most. Those are these types of emergency orders, mostly decisions asking for a stay or an injunctive relief. And they involve all kinds of things. In the last few years, there have been more emergencies, more requests for injunctions because of the 2020 election and the surrounding challenges to that and also based on COVID-related restrictions. So our court made a number of decisions that weren't widely available to the public because we do not publish those decisions. They're very hard to find. And they decided things such as whether - who had the right to order, for example, schools to stay closed. Were local officials allowed to do that because of COVID or were they not?

DETROW: So what's the fix in your mind?

DALLET: Well, I think there's multiple fixes. The first is the transparency fix. And in Wisconsin, we actually have one of the least transparent shadow dockets. The U.S. Supreme Court makes their orders available. So while they may not have the full briefing and the full oral argument and all of the reasoning that might be in the opinion, you can at least find it. Wisconsin, you really can't find it. The other thing would be the precedential value of these decisions. Are we going to be making substantive decisions in these shadow dockets? And if we are, what kind of precedential effect? Like, can people cite to them as the law or not? You know, and then should these be taken up more fully? Should we be - instead of issuing something briefly that perhaps changes the substantive area of law, should we just be putting it on our merits docket in a quicker fashion?

DETROW: What about the argument that sometimes courts need to rule quickly, and this is a way to get a ruling out there and not wait for months?

DALLET: Well, there definitely are going to be shadow dockets. This is something that's important. The question is, how much are we going to be accomplishing on those dockets that isn't in full daylight, hence the shadow reference...

DETROW: Yeah.

DALLET: ...To the public?

DETROW: I think due to that $40 million spent and the media attention on the race that just happened in Wisconsin, a lot of people are aware that there's been a shift in control of the court. Do you see the way the Wisconsin state Supreme Court handles shadow dockets changing in the future?

DALLET: I hope that it will change. I hope that this is something that we can work on as a court and hopefully find even some more collaboration than a 4-to-3 decision on that issue.

DETROW: That's Justice Rebecca Dallet of the Wisconsin state Supreme Court. Her article "State Shadow Dockets" is published in the Wisconsin Law Review. Justice Dallet, thanks for talking to us.

DALLET: Thanks for having me. Transcript provided by NPR, Copyright NPR.