Photo illustration by Ali Bachmann
People ask whether Wisconsin Supreme Court Justice Brian Hagedorn is a conservative judge. Charles Benson from Channel 4 posed the question this way: “What would you say to people who thought, ‘Well gee, I thought he was the conservative judge.’ What's up with Justice Hagedorn?”
Yes, everyone, Justice Hagedorn is a conservative judge. In August, Hagedorn spoke unapologetically to a virtual meeting of attorneys from the progressive-leaning American Constitution Society (ACS). Regarding his judicial philosophy, “I’m an originalist and a textualist,” Hagedorn said. “Textualism means the law means what is says. Originalism points to what it meant when drafted.”
Photo courtesy of Justice Hagedorn
These two theories of legal interpretation come from conservative thinkers. The late conservative lion of the Supreme Court, Justice Antonin Scalia, was a strong proponent of both. Hagedorn’s ideas also square with the judicial philosophy of ACS’s counterpart, the Federalist Society. The conservative legal organization states that courts function properly when they are “applying the law impartially according to its text and original public meaning.”
So why are people questioning whether Hagedorn is conservative? The answer is simple. Hagedorn is not a guaranteed vote for the Republican legislature. Therefore, he is not considered a reliable political conservative, regardless of the type of judicial review he applies.
Stay at Home?
When Hagedorn wrote in support of Governor Evers’ stay-at-home order, former state Representative Adam Jarchow tweeted that “Conservatives have been snookered.” Because the outcome of Hagedorn’s decision conflicted with the goal of the Republican legislature, he lost his conservative club card.
The error with Jarchow’s logic is that it defines the legal reasoning of a decision based upon its political or policy outcome rather than the reasoning itself. Ironically, this outcome-based view has been frequently criticized by conservatives in other contexts as “judicial activism,” or when a judge substitute's her or his own opinion for the law to achieve specific political or policy outcomes.
Judges calling themselves textualists and originalists are bound to say what the law means within a restricted set of parameters. Neither theory allows casual interpretations of legal text to achieve the pursuit of policy or political agendas. It is therefore entirely possible that a conservative judge could rule against a Republican litigant and do so while being quintessentially “conservative.”
To his credit, Hagedorn’s former boss, Governor Scott Walker, apparently saw the distinction. According to Walker, “Everything I’ve seen in the past is he’s going to be consistently conservative. Not politically. He's going to consistently be in the camp of believing the Constitution is the ultimate guide.”
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As Hagedorn continues to “call balls and strikes”—a famous quote of Supreme Court Chief Justice John Roberts—he seems unphased by the ire directed at him. Maybe Hagedorn just assumes it comes with the territory, calling it as he sees it and letting the judicial chips fall where they may.
But, no matter what, it is accurate to answer the question and say that, yes, Justice Hagedorn is a conservative judge.
Andrew Hysell is a graduate of Carroll College and Georgetown University Law School and a former Congressional staffer.
