Democrats took control of the Wisconsin Supreme Court earlier this year when Justice Janet Protasiewicz was elected after campaigning against the state's electoral map.

Protasiewicz has refused to recuse herself from a case that is expected to result in the map being thrown out, a fact some critics say is unconstitutional. 

Justice called electoral map "rigged" and "unfair"

According to Breitbart, those critics include Chief Justice Annette Ziegler, who slammed Protasiewicz's decision not to step back.

He wrote in a dissent that her move "appears to be evidence of a partisan and political, rather than a reasoned and restrained, approach, and thus departs from the constitutional role of the judiciary."

Justice Rebecca Bradley authored a dissent of her own, complaining that the "probability of actual bias on Protasiewicz's part likely approaches 100 percent."

Those statements reflect Protasiewicz's rhetoric on the campaign trail, such as deriding the Wisconsin legislature's redistricting plan as being "rigged" and "unfair."

“Prejudge #Protasiewicz ” asserted legislative maps are “rigged,” told media maps are not “fair,” & would enjoy hearing a challenge. She repeatedly, blatantly, openly pre-judged case coming before state’s highest court. ⁦@WisGOP⁩ https://t.co/21jC7rUUYi

— Brian Schimming (@BrianSchimming) August 12, 2023

Former chief justice says Protasiewicz has pre-judged case

"They do not reflect people in this state. I don't think you could sell any reasonable person that the maps are fair," the Milwaukee Journal Sentinel quoted Protasiewicz as saying in January.

"I can't tell you what I would do on a particular case, but I can tell you my values, and the maps are wrong," the then-candidate added.

Those words brought a rebuke from former Wisconsin Supreme Court Justice Daniel Kelly, who said, "When someone tells you what their values are to a legal challenge, they are telling you how they will decide a case."

"Unless we are dead set on tearing down the distinctions of the branches of government, we need to make sure the court exists for deciding legal distinctions," he declared.

Possibility exists for a constitutional challenge

Breibart noted that Protasiewicz's involvement in the case may implicate the Constitution's Fourteenth Amendment Due Process Clause. It holds that no state may "deprive any person of life, liberty, or property, without due process of law."

Breitbart contributor Ken Klukowski pointed to a 2009 case Caperton v. A.T. Massey Coal Co. in which the United States Supreme Court ruled that due process is violated when a biased judge presides over a case.

However, he acknowledged that the U.S. Supreme Court will only have jurisdiction to review due process violations after a decision has been rendered.