A test for judicial independence in Wisconsin

Elon Musk is spending big on the state’s Supreme Court race while expressing contempt for independent courts. That’s a worrisome combination.

By Robert Yablon

Wisconsin is no stranger to big-money, politically charged state Supreme Court elections, and this year’s race might end up being the most expensive and divisive yet. What’s unfolding in Wisconsin highlights the growing tension between the ideals of an independent elected judiciary and the realities of many modern judicial campaigns—a tension epitomized by Elon Musk’s decision to join the fray.

What makes Musk’s role in the Wisconsin race notable isn’t just that Musk is, to many, plutocracy personified—a megalomaniac wielding vast economic and political power. It’s also that Musk has been openly hostile to the very idea of an independent judiciary. His recent spate of verbal assaults on judges who have ruled against the Trump administration suggests that what he expects from courts is fealty. Viewed in that light, his Wisconsin intervention should ring alarm bells.

Judicial independence, after all, is a centerpiece of the nation’s constitutional design at both the federal and state levels. Alexander Hamilton famously described the independence of judges as an “essential safeguard” against the efforts of “designing men” to “occasion dangerous innovations in the government” and to invade individual rights. Hamilton and his fellow federal founders viewed an appointed, life-tenured judiciary as the best way to give judges the “fortitude” to fulfill “their duty as faithful guardians of the Constitution.”

State constitutions are just as committed to judicial independence, but many states long ago rejected the federal model and embraced elections rather than appointment as their preferred way to achieve a truly coequal and independent judicial branch. As the Wisconsin Constitution’s drafters saw it, judges appointed by the political branches had too often been beholden to those branches and to “partisan” influence. They preferred to put the choice of judges directly to the people and to separate judicial elections from elections for partisan state offices. (This is why Wisconsin chooses its state supreme court justices in April rather than in November.) Temporal distance, they hoped, would help insulate judicial elections from “the heat of partisan feeling or the efforts of demagogues.”

Today’s judicial elections bear little resemblance to that original vision. The Musk-affiliated groups doling out millions of dollars on behalf of Republican-endorsed candidate Brad Schimel are supercharging what was already shaping up to be a billionaire-bankrolled partisan brawl for this ostensibly nonpartisan office. Spending on this year’s race looks to be outpacing the $50 million-plus spent on Wisconsin’s 2023 state supreme court election—a sum that itself shattered national records for judicial elections. And after being outspent in 2023, the Republican Party and its aligned funders seem more determined this year to match or exceed what the Democratic Party and its aligned funders are spending on their preferred candidate, Susan Crawford.

Wisconsin’s weak campaign finance laws place few constraints on these electoral spending sprees. The state nominally sets a $20,000 cap on how much individuals can contribute directly to state Supreme Court candidates, which is itself several times more than what federal law allows people to give to presidential and congressional candidates. But state law offers a workaround: Individuals can give unlimited sums to political parties, and parties can transfer unlimited sums to candidates. State law, moreover, allows outside groups to spend money not just independently but also in coordination with candidates, at least to the extent the expenditures do not qualify as “express advocacy,” which the law defines narrowly. And this spending can occur with limited public disclosure. As a result, we likely have only a partial picture of megadonor activities.

Though U.S. Supreme Court precedent treats campaign expenditures as a form of constitutionally protected expression, copious spending has not elevated Wisconsin’s campaign discourse. A disproportionate number of the ads now bombarding voters merely trade accusations about each candidate’s supposed past failures to be tougher on crime. Such ads, of course, are just an ugly distraction, as the people who fund them well know. State supreme court justices have minimal involvement in discrete criminal sentencing decisions, and big funders are not choosing sides based on the candidates’ criminal-law credentials. Instead, they are investing in the race because the Wisconsin Supreme Court handles an array of consequential matters that implicate their economic and ideological interests—reproductive rights, labor rights, voting rights, gerrymandering, and much more.

Given Musk’s unique combination of wealth and notoriety, Crawford and her allies are trying to paint Schimel as Musk’s lackey and Musk as an outsider seeking to take over the state Supreme Court. In response, Schimel has pointed out that Crawford has her own out-of-state billionaire backers, including the oft-demonized George Soros. Predictably, both candidates contend that their opponent has been bought, while they alone remain scrupulously neutral and nonpartisan.

In reality, a system that makes judges dependent on the largesse of the superrich is not good for anyone’s independence. As Chief Justice John Marshall observed nearly two centuries ago, courts are sometimes called upon to decide “between the most powerful individual in the community, and the poorest and most unpopular.” Their duty is to do so with “the utmost fairness” and without fear that their “decision may offend a powerful and influential man.” That’s a lot to ask of judges who rely on powerful and influential patrons.

With Musk, these concerns are magnified. He is no ordinary patron. Beyond having the world’s deepest pockets and one of its largest megaphones, Musk has repeatedly vilified judges whose decisions he dislikes. In recent weeks, he has bashed federal judges as “evil” and “corrupt,” and called for “an immediate wave of judicial impeachments.” Some of his comments have even veered toward outright racism. To be clear, we are all entitled to criticize rulings we think are wrong and to condemn what we see as judicial overreach, but brazen personal attacks and threats of recrimination are different, especially when set alongside a multimillion-dollar investment in a state supreme court election. Such remarks “cross the line,” the American Bar Association recently wrote, calling them “a clear and present challenge to our democracy” and a threat to “the very foundation of our constitutional system.”

To date, Schimel has welcomed Musk’s support, without any evident qualms. (Schimel is also angling for an endorsement from President Trump, who has his own long history of denigrating judges.)

In short, Musk’s Wisconsin intervention adds a new and troubling twist to longstanding concerns about big money in judicial elections. We now find ourselves in a world in which an outspoken foe of judicial independence is the most prominent financial backer of a candidate for a job that demands that very independence. If the court’s justices were to embrace Musk’s views about judging, the court would cease to fulfill its core constitutional function.

But one vital layer of accountability does remain: Wisconsinites will have their say on April 1. Amid the cacophony of the campaign, will voters notice the profound irony of Musk’s role? Given the other signals they will be receiving from provocative ads and prominent endorsements, will they care? That remains to be seen. Whatever happens, the results will speak volumes about whether judicial elections can remain a meaningful tool for countering unchecked power and safeguarding the rule of law.

Robert Yablon is a professor at the University of Wisconsin Law School and faculty co-director of the State Democracy Research Initiative.

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