By Peter Cameron and Molly Liebergall
The Badger Project
Six of Wisconsin’s seven Supreme Court justices will soon be women again, once more giving the state the highest ratio of female high court judges in the country, an investigation by The Badger Project found.
Dane Co. Judge Jill Karofsky’s victory this week over Wisconsin Supreme Court Justice Dan Kelly by an unofficial margin of 55 to 45 percent gives the court six female justices. Justice Brian Hagedorn, who replaced and defeated a female candidate, is the lone male on the court.
Hagedorn shocked the state by eking out a tight victory last year against his female opponent State Appeals Court Judge Lisa Neubauer. Had he lost, the Wisconsin Supreme Court would now be all female. That would have been a first in U.S. history.
State supreme courts by the numbers
With six out of seven female justices, the Wisconsin Supreme Court is 86 percent women. Before Hagedorn’s victory last year, in which he replaced the retiring liberal Justice Shirley Abrahamson, the court had seen the same historic gender makeup in the previous year.
Of the 327 sitting state high court justices in the U.S., 125 are women, for a national percentage of 38 percent.
The highest courts in all 50 states have five, seven or nine judges, and the only ones that come close to Wisconsin’s gender makeup are in Oregon and Washington.
Five of Oregon’s seven judges are female, while six of Washington’s nine are—71 percent and 67 percent, respectively.
With one of nine, Mississippi has the lowest ratio of female judges on high state courts at 11 percent. Arizona, Florida, and Louisiana are next-to-last with one of seven, or 14 percent.
Had the Wisconsin Supreme Court become all-female in 2020, it technically wouldn’t have been the first state Supreme Court in U.S. history to consist of all women. In 1925, Texas temporarily convened a Supreme Court of three women justices to hear a case from which the court’s three permanent judges, all men, had recused themselves. The temporary, all-female court was disbanded after it made its ruling a few months after its inception.
Sally J. Kenney, a political science professor at Tulane University and an expert on women in politics and the judiciary, said she was unaware of any other court with all-female justices.
A permanent female Supreme Court justice would not be seated in Texas until 1982. And a majority-female state Supreme Court would not exist anywhere in the U.S. until 1991 when the Minnesota governor appointed the state’s fourth woman to the seven-judge court.
Female-dominated, and leaning conservative
This year’s Supreme Court election was so hard-fought and expensive, the historic gender makeup of the Wisconsin Supreme Court has almost been an afterthought.
“The partisan nature of these races has just taken over completely,” said Janine Geske, the second woman to serve on the Wisconsin Supreme Court. “I think it’s tragic.”
She lamented how ideology has consumed court elections that are supposed to produce fair and impartial judges. But Geske also noted she thought Karofsky would be a “marvelous” justice.
With the addition of the left-leaning Karofsky, the Wisconsin Supreme Court is widely considered to be split 4-3 in favor of conservatives.
The court’s six female justices are generally seen as being divided 3-3 on the ideological spectrum.
That’s a stark difference, at least in perception, from 1993, when popular Republican Gov. Tommy Thompson appointed Geske to the court. At the time, Geske said some assumed she would be a “clone” of Abrahamson, a prominent liberal voice.
“I have deep admiration for Shirley Abrahamson,” said Geske, who is generally considered to be a moderate. “But I am not her. She and I disagreed on lots of cases.”
Geske recalled with a chuckle a press conference when Thompson announced her appointment to the high court. A reporter mistook her for another female judge who had opposed the governor on a significant case. A look of panic washed over Thompson’s face until Geske pointed out the reporter’s mistake.
“I think if we’ve learned anything over the last several years, at the national level and even in local government, it’s that women as a group can have as diverse views as anyone,” Geske said.
“Women might have similar thoughts on some issues,” she continued, pointing toward issues involving children and cases alleging sexual assault, “but it does not mean that they will come to the same conclusion.”
Some research supports this view.
A 2010 study titled “Untangling the Causal Effects of Sex on Judging” by Christina L. Boyd of University at Buffalo, SUNY, Lee Epstein of Northwestern University School of Law, and Andrew D. Martin of Washington University in St. Louis found that the presence of women on federal appeals courts rarely had any effect on outcomes. The exception came when dealing with sex discrimination disputes.
And not only did female judges bring “distinct approaches” to those cases, but the presence of a female judge often caused male judges “to vote in a way they otherwise would not – in favor of plaintiffs.”
The findings were similar to conclusions from other research on the effect of gender in court judgments in cases dealing with employment issues, the Boyd study said. Their research also suggested that as the backgrounds and experiences of judges widens, so does the range of ideas and information brought to the judicial process.
Though the Wisconsin Supreme Court may be a ground-breaker in gender makeup, it is not racially diverse. All the justices are white.
“I think that that’s a problem with our court, and I’m hopeful that in the near future we’re going to get some diversity up there,” Geske said. “There are a lot of talented judges of color in our system now.”
“I think the court would benefit from that viewpoint,” she said.