Millions spent to unseat liberal majority on Pennsylvania Supreme Court

PHILADELPHIA (CN) — On Nov. 4, Pennsylvanians will decide whether or not to retain three state Supreme Court justices in an election that could shape abortion access, environmental rights and the future of the American presidency.

Pennsylvania is one of seven U.S. states to elect its state Supreme Court justices via partisan elections. Once elected, justices are required to abandon their partisanship and face a retention election every 10 years, where voters determine whether the justice remains on the bench.

“When you give someone a lifetime seat on the court, as we do in the federal judiciary, there’s no way to have any check over whether people are doing their jobs and doing their jobs well,” said University of Pennsylvania political science professor Marc Meredith. “And so the idea of the retention election is to try to incentivize judges that they have to do their job, or potentially face some accountability from voters.”

Pennsylvania Supreme Court Justices Christine Donohue, Kevin Dougherty and David Wecht — all of whom were elected as Democrats in 2015 — now seek to retain their seats.

The swing state’s outsize influence on federal politics has brought bipartisan national interest in the election and how the court’s makeup could influence upcoming elections, as all three justices up for retention have made critical rulings on voting rights.

In 2020, Donohue, Dougherty and Wecht all ruled in favor of Pennsylvania’s use of ballot drop boxes in the 2020 presidential election. However, Donohue dissented from the court’s decision to extend the deadline for returning mail ballots, and Dougherty dissented from the court’s decision to count undated ballots.

And in 2018, all three justices struck down GOP-drawn congressional maps due to partisan gerrymandering — an issue that has grown increasingly prominent as states like Texas, California and Florida have openly attempted to gerrymander districts for partisan purposes this year.

West Chester University political science professor John J. Kennedy — who provided expert testimony in that redistricting case — told Courthouse News that depending on how Pennsylvania’s executive and legislative makeup shifts in the coming years, similar efforts could come to the Keystone State, leaving the state Supreme Court as the last line of defense against gerrymandered districts.

“The [current state] Supreme Court probably would be a bulwark against any kind of gerrymandered map,” Kennedy added.

Additionally, the court is anticipated to hear several cases of significant importance to Pennsylvania’s over 13 million residents.

Pennsylvania’s Supreme Court has not yet ruled on whether the state constitution protects the right to abortion. However, all three judges up for retention ruled last year to overturn a 39-year ban on using Medicaid funds for abortion. Notably, Donohue appeared in her opinion to support the notion of protecting abortion rights, with Wecht in concurrence.

“Whether or not to give birth is likely the most personal and consequential decision imaginable in the human experience,” Donohue wrote in her opinion. “Any self-determination is dependent on the right to make that decision.”

Furthermore, as one of only three states to have a constitutionally established right to a healthy environment, Pennsylvania’s Supreme Court has significant influence on just how far those protections go.

All three judges up for retention have previously ruled to strengthen those rights. In 2017, Dougherty and Wecht concurred with Donohue’s opinion determining that Pennsylvania must exclusively use revenue from the royalties of oil and gas leases on public land to pay for environmental conservation and maintenance.

Since Pennsylvania began utilizing retention elections for its Supreme Court Justices in 1968, only one justice has ever failed to retain his seat.

In November 2005, Justice Russell M. Nigro was ousted from the state’s highest court after the General Assembly and then-Governor Ed Rendell covertly granted pay raises to all three branches of state government earlier that year. While Nigro played no role in the pay increase’s passage, the judge bore the brunt of constituents’ ire in what Kennedy described as being “in the wrong place at the wrong time.”

“It wasn’t necessarily for ideological reasons at all — it was just to take out voter anger,” Kennedy said. “But this is the first time you’ve ever really had a partisan attempt to prevent a retention.”

Costly campaign efforts

With the court likely to soon oversee a slate of cases with substantial national and statewide implications, the upcoming retention elections have resulted in multimillion-dollar campaigns both for and against retaining all three justices.

By September’s end, over $7 million had been poured into election efforts, with Pennsylvania Democratic Party chair Eugene DePasquale expecting spending to top $10 million by Election Day.

High-ranking Democrats have supported retention efforts, characterizing the GOP as attempting to buy the election using the wealth of prominent conservative donors such as Pennsylvania billionaire Jeff Yass.

“For the vast majority of Pennsylvania history, these are very apolitical affairs,” DePasquale said. “But a MAGA billionaire has decided to invest millions and millions of dollars into this election, basically trying to take corporate control of the court and throwing it into chaos.”

Democratic National Committee chair Ken Martin echoed DePasquale’s sentiment, telling reporters that Pennsylvania is “ready to reject Jeff Yass and Trump’s handpicked candidates." He compared the spending to Elon Musk’s $20 million campaign to support conservative Wisconsin Supreme Court candidate Brad Schimel, who ultimately lost to liberal candidate Susan Crawford earlier this year.

Across the aisle, Pennsylvania Republican Party communications director James Markley lambasted the three incumbent justices, painting them as part of a “liberal activist Supreme Court.”

“As far as I’m concerned, they’re Democratic politicians in long black robes,” Markley said, highlighting their rulings favorable to mail-in ballots and Covid-19 lockdown measures, as well as their overturning of Bill Cosby’s sexual assault conviction. The court ruled in 2021 that Pennsylvania had violated Cosby’s due process rights by failing to uphold a 2005 agreement between Cosby and a prosecutor promising immunity.

When asked about the Pennsylvania Bar Association’s recommendation to retain the three justices, Markley derided the nonpartisan institution as a “left-leaning organization.”

“They have been for quite some time,” Markley said. “I understand that endorsements are an important part of the campaigning process, but the only endorsement that really matters at the end of the day is the endorsement of the people of the commonwealth.”

Potential for gridlock

If any of the three Pennsylvania Supreme Court justices are not retained, Governor Josh Shapiro would appoint a temporary replacement justice, subject to a two-thirds majority vote in the state Senate. The replacement justice (or justices) would hold the seat until a partisan election in 2027.

The problem? Shapiro, a Democrat, and the Pennsylvania state Senate, led by Republicans, maintain a contentious relationship that has only grown worse in recent months. Discussions between Shapiro and the General Assembly over determining a state budget remain ongoing more than 100 days after its June 30 deadline, crippling the state’s ability to fund essential services such as public schools, public transit and local governments.

In the event that all three justices are not retained, the two headbutting branches of Pennsylvania’s government would have to find a middle ground or risk letting the state’s highest court sit at a potential 2-2 deadlock. Under this possibility, the four justices would have to reach a unanimous agreement to set any legal precedent, and any deadlocks would defer to a case’s previous lower court ruling.

While this nightmare scenario is possible, Penn State political sciences professor and department head Michael J. Nelson told Courthouse News he can imagine Harrisburg finding some form of compromise.

“I could totally make the argument that, with three seats, that increases the probability of gridlock,” Nelson “But also with three seats, there’s more opportunity for wheeling and dealing — maybe Democrats get somebody they like, Republicans get somebody they like, and they pick somebody who seems moderate.”

Meredith, however, expressed less optimism.

“Watching the way the state budget has not gone through yet, I think there’s a real chance that if these judges are not retained — especially all three of them — that we may wait a while to have judges on the court,” he said. “Whether we could go a full two years without justices on the court, it seems hard to imagine. But it also is a little hard to imagine going over 100 days without a budget.”

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