One-on-One: Wisconsin Supreme Court candidate Dan Kelly

Dan Kelly, the only former state Supreme Court justice, is running again to be on the high court.
Published: Feb. 14, 2023 at 5:51 PM CST|Updated: Feb. 14, 2023 at 6:44 PM CST
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MADISON, Wis. (WMTV) - One week from Tuesday is the spring primary in the Badger State. The only statewide race is for the open seat on the Wisconsin Supreme Court, with the retirement of Justice Pat Roggensack. The two top vote-getters will move on to the election on April 4.

Dan Kelly, the only former state Supreme Court justice, is running again to be on the high court. He served four years as former Gov. Scott Walker’s appointee, then lost his bid to keep his seat in 2020.

NBC15 plans to sit down with all four candidates to discuss their top priorities and why they believe they should serve on the Supreme Court.

Watch an extended interview with Dan Kelly:

Dan Kelly is one of four candidates on the ballot for Wisconsin Supreme Court.

Leigh Mills: What do you want voters to know about you and your priorities if elected to the bench?

Dan Kelly: I think it centers largely on the body of scholarship I’ve developed over the years. So, it was just a professional privilege of a lifetime to serve the people of Wisconsin as one of their justices on the Supreme Court. During that time I authored several landmark opinions on Constitutional matters. The entirety of my work has been cited, quoted or relied upon hundreds of times by courts here in Wisconsin and across the country. And so, I wrote each one of those opinions with the people of Wisconsin in mind. So I understand that all of the authority we use on the court is just on loan from them. And so every opinion I wrote, I did it with the idea that I’m giving a report card to my bosses on what I’ve done with their authority on that case. So the easy answer to that is I want them to read my opinions and there they will see the living heartbeat of a constitutional conservative, someone who understands their job is simply to apply the law as it already exists to resolve the cases, setting aside personal preferences, personal values and just using the law to decide the cases.

LM: What sets you apart from the other three candidates in this race?

DK: I think that’s one of them. I have a body of work that’s been developed over several years that is not comparable to any other candidate in this race. So, I think that’s one. The other is an absolute commitment to this idea that we call constitutional conservativism. The principal that the law decides the cases, not individuals. So you really need to have a methodology to do that, to do that reliably and accurately in every single case. And so what I’ve developed, this is the way I handle it. You take whatever the legal provisions are that are applicable to the case, whether that’s a constitutional provision, a statute, a regulation, common law, whatever that might be, those are the premises. And then you reason from those premises with rigorous logic all the way down to the conclusion, and when you’re down, you should be able to go back and see an unbroken chain of logic connecting the conclusion to the premises. And if there’s no break, that’s your guarantee that your conclusion is commanded by the law and not affected by personal preferences. So that has been what I have already done in serving the people of Wisconsin as one of their justices, and it’s what I would continue to do. And I think that sets me apart from any of the other candidates.

LM: That’s surprising, because you would think that everyone on the court would be approaching, and I don’t necessarily understand the legalese as I’m not an attorney, but in general that each justice would be approaching their opinion on the matter based on that same kind of rigorous way of applying the law versus a personal perspective. But you don’t believe that that’s the case?

DK: I don’t. There are two schools of thought about what a court’s role is. One is what I just described, that the law and only the law decides the cases. A different school of thought says well the law is just the starting point. And then the jurist is to decide, does that continue to be a wise and useful law. Or do we need to update it. Or they look at the Constitution and they say, well you know the Constitution for Wisconsin was written in 1848. Culture today, community today, it’s not the same as in 1848. And maybe we as justices should be updating the constitution. So it’s a school of thought commonly known as living constitutionalism, and I believe that that is wholly illegitimate. We can change our Constitution over time and it has needed some changes over time. But you know, in the United States Constitution Article 5 provides how it gets amended. In the Wisconsin Constitution, it’s Article 12. And I’ve looked at both of those provisions very carefully and you know what they say about the court’s role in updating the Constitution? Not a thing. That is a conversation that the people have reserved for themselves and conversation with the legislative branch of government. But that is a school of thought that’s out there. And it is represented on the court today by three members, and I think that’s a problem because the whole role of the court is simply to take the work that the other branches do and use that to decide cases. The people of Wisconsin, when they construct our constitution and as they’ve maintained it, they’ve looked at us on the court and they’ve said, look we’ve got one job for you, just one. Please don’t screw it up, it’s just one thing. Use the laws that already exist to decide our cases. We’re not interested in whether you think it’s a good law or a bad law or effective or not, we’ll have that conversation with the legislature. You just do this one job for us.

LM: So to the point you’re making this position is non-partisan, but it will control the ideological makeup of the court and it will control the balance of power between conservative and liberal justices. And there are many political observers who have said the Supreme Court has been drawn into the political fray. Is that a new reality?

DK: I think that there’s always a danger that the court will be drawn into the political fray, but I think the first step in dealing with this is to recognize that that is in fact a danger. That we’re not supposed to be in the political fray. So you mention that this race will tip the ideological balance of the court, and that’s true. If I don’t succeed, the balance will tip. But it is a... the balance is how you view the role of a court. It’s not a political balance, right? Because not only is it non-partisan, it’s non-political. Or at least it’s supposed to be. So in the philosophy that I described, in just using the law to decide cases, politics has no place in that. All the politics that will occur have already taken place over in the legislative branch. That’s where we resolve political questions. And that comes out as a law and then we take that law to decide the case.

LM: I understand what you’re saying, but stick with me here. I think it may be challenging for people when you have, for instance, a person who used to sit on the very court that you’re trying to get elected to, be involved in an investigation into the 2020 presidential results and everything that ensued after that...

DK: Which was not me, by the way.

LM: Which was not you... Michael Gableman, just to be clear. But he was a conservative on the court. So when people see that is it fair for them to be concerned about political viewpoints making their way onto or involving things that are decided on our highest court?

DK: I think that should always be a question in people’s minds. And that should be foremost in their minds when they’re looking at an election. I think that’s something they really need to drill into. So in any candidate that comes to them and says I will be faithful to the law, I will be faithful to the constitution, the first question you should ask is show me how? right? Because the truth of the matter is all of us have politics. We all have political beliefs. We all have political preferences. The question is whether you can set those aside to do the work of the court. So does Mike Gableman have political preferences? Of course he does, because everyone does. So anyone who comes to the court will come with that as a reality. So the question is, how do you set that aside so that when you decide cases it’s not being influenced by your political preferences. And that’s why I described the methodology that I have in deciding cases, because if you follow that, that will squeeze out all of your personal values, politics, preferences, whatever they might be, and make sure the result is simply the command of the law. But if you don’t have that methodology and if you’re not committed to it, then people should be concerned about politics getting inside of the courtroom.

LM: Speaking of issues, I have to ask you about one that I know will be a major issue that I would expect will come before the Wisconsin Supreme Court, and that is the issue of abortion. Do you believe the 1849 abortion ban should be repealed? Should it be enforced? Is it outdated? Where do you stand on that issue?

DK: I stand on that issue the same place I stand on every other issue that has every come before the court or ever will come before the court. I will decide that question based on the law to the extend it is consistent with our Constitution. And that is the commitment that any good jurist must bring to the court. It is a question of consistency. I said the other day to a group of folks that I would be my promise was to be the most boring Supreme Court justice in the history of the state. And here’s why. The role of the court is not to do anything exciting, novel or anything like that. It is supposed to do the same thing day after day. What is the court supposed to do today? It’s supposed to use the law that already exists to decide cases. And then tomorrow when the jurists come into their office, their job will be to decide the cases according to the law that already exists. And the day after that it will be the same, and the same after that ad infinitum. So whether it is the abortion case, whether it is redistricting maps, whether it is a breach of contract case, the role of the jurist does not change amongst any of those issues. You apply the law to the extent that it’s consistent with the constitution and you leave your personal preferences on the sidelines.

LM: So the way that the law is written, you would allow the abortion law to stand, that would be, I would take, what you’re saying. Is that correct?

DK: That’s a piece of it, to the extent that it’s consistent with the constitution. So right now I understand there is a case working its way through the judicial system. I’ve not looked at the pleadings for a while, but from my understanding the allegation in the case is that there is a subsequent statute that overrules or replaces the 1849 statute.

LM: Newer laws that were put into place, yes.

DK: So as far as I’m aware, there isn’t a claim that the 1849 statute is unconstitutional, it’s just that it’s been superseded. So the question that the court will have to answer there is to well compare the two statutes and determine is so far inconsistent with the other that you can’t apply one without introducing the other and if you can’t then that suggests that the later statute has superseded the earlier statute. So that’s kind of one of the principals that would be used in citing the case, so I’m obviously not going to say how I would decide it because one of the commitments a jurist has to have is to have no preconceived notions on how they would rule in a case before they view that case, before it comes to them for a decision. But as far as the approach goes, that should be the same as in any other case. You apply those legal principles. So in that case, looking at those two competing statutes and determining which one remains in effect. I imagine someday someone will probably challenge the constitutionality of one of them and that will come before the court and the job of the court there will be precisely the same thing. What does the law say about how we decide this case.

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