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.”
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