(The Center Square) – The majority of issues Pennsylvanians see on their ballots Tuesday will be those of local consequence – school board, township, and council races, the Philadelphia District Attorney, the Pittsburgh mayor.
Powerful players, however, have taken the off-year from national politics as an opportunity to bring the magnifying glass to the state’s historically unremarkable judicial retention votes.
State supreme court justices are subject to retention votes every 10 years following their initial election until they reach the mandatory retirement age of 75. Three of the court’s current justices – David Wecht, Christine Donohue and Kevin Dougherty – are up for retention this year. They’ve all been recommended for retention by the nonpartisan Pennsylvania Bar Association.
In over five decades, a judge has only lost their retention vote once; Justice Russell Nigro whose retention race in 2005 was muddied by an unpopular and secretive pay raise legislated and approved by the other two branches of state government.
When a judge loses their retention, a replacement is appointed by the governor until the next odd-year election.
Though judges run as members of political parties initially, they do not have a party alliance on ballots for retention. In theory, judges are expected to be impartial in their application of the law. In practice, the judicial branch has often been wielded as an extension of partisan political power.
The millions spent on both sides of the judicial retention question may be the best evidence of that yet.
Conservative political groups are hoping to persuade voters to side against retaining the justices, casting them as left-leaning activists who have used their power to influence the state.
They’ve even had help from President Donald Trump. On Sunday, Trump told Pennsylvanians on Truth Social to vote “NO, NO, NO” on the justices whom he called “radical” and “activists.” He blamed them for his impeachment by way of the “gerrymandered Congressional maps” and said they “interfered in the 2020 election.” He also said they “locked you up during COVID” and “let sex offenders out of prison.”
Much of the political messaging has taken advantage of the ambiguity of the retention vote. State-level judicial issues rarely make the kind of headlines that familiarize the electorate with individual judges. Without a political party connected to the judges on the ballot, many voters may opt for the default retention.
Republican super PAC Early Vote Action supplied yard signs commandeering the anti-Trump “No Kings” slogan for yard signs opposing retention in the state. The League of Women Voters took up issue with mailers funded by conservative billionaire Jeff Yass which misleadingly implied that the justices in question were responsible for congressional gerrymandering, using an inaccurate 2011 map to demonstrate.
Democrats have come out in force and spending to counter Republican campaigning. In September, the Democratic National Committee announced a six-figure investment on the issue. They’ve emphasized that state Supreme Court decisions can impact health care, abortion access, and other issues important to voters.
Gov. Josh Shapiro has put his weight behind the justices, calling their races “some of the most consequential in the entire country.”
“Here in Pennsylvania, the threats to our freedoms are very real,” he said in an ad for the judges. “That’s why we need to keep our state Supreme Court standing up for what’s right.”
The retention question is shaping up to be a referendum on the kind of judicial activism also played out at the national level. In 2016, the Republican-led Senate refused to consider Merrick Garland, Barack Obama’s nomination to replace deceased Justice Antonin Scalia.
Following his first election, Trump appointed three conservative justices to the court, giving them a 6-3 majority. In a flurry of landmark rulings, the sitting court has reshaped the landscape of American law, from overturning Roe v. Wade to granting former presidents immunity from prosecution.
Pennsylvania Democrats fear that with a Republican-controlled Senate, the Supreme Court of Pennsylvania could see a similar fate. Currently, the court has a 5-2 liberal majority. If not retained, the judges’ short-term replacements would be appointed by Democratic Gov. Josh Shapiro who would need a two-thirds majority from the Senate for approval.
If the ongoing budget impasse is a strong barometer of political will in the Senate, it’s unclear whether Shapiro would be able to muster the support necessary for the Senate to back his appointments. Even if he got it, the playing field would be wide open for Republicans to run judges of their choosing on the 2027 ballot to fill the vacated seat long-term.
