Next month’s election will give voters a choice they may not know what to do with. The ballot will ask voters whether to retain three Justices on Pennsylvania’s Supreme Court: Christine Donohue, Kevin Dougherty, and David Wecht. 90.5 WESA’s Susan Scott Peterson spoke with our politics editor Chris Potter to help make sense of that vote.
Susan Scott Peterson: Thanks for being here, Chris.
Chris Potter: Hey, thanks for being willing to talk about this. This is a hugely important issue — these justices can decide reproductive and voting rights, and determine everything from how we levy taxes to how we protect our environment. But whenever I bring up judicial retention, people tend to back away and make calming hand gestures.
A couple things that are confusing here. One of them is that we don’t vote to retain Supreme Court justices at the FEDERAL level. Why are we doing it for Pennsylvania’s Supreme Court?
It’s an effort to resolve a paradox in Pennsylvania’s judicial system. We elect our judges, but we also want them to be above politics.
So the idea is voters pick statewide judges and justices the same way we do for any other office. In this case, Justices Donohue, Dougherty and Wecht won as Democrats in 2015. But after 10 years, we vote on whether to retain them in a non-partisan process. That way voters can evaluate them purely on the basis of their ability. Or at least that’s the theory.
It’s feeling pretty partisan to me. I’m seeing very typical campaign stuff — I’m getting approached on the street in Squirrel Hill by Democrats with clipboards, I’m seeing yard signs … But it’s hard to see beyond the fact that these justices are Democrats. What are the actual issues here?
Republicans have blasted the justices for upholding Gov. Tom Wolf’s Covid shutdowns, which hurt a lot of businesses. In that case the justices said the shutdowns may be bad policy, but the legislature had passed laws that allowed the governor to impose them.
The broader criticism of the justices is that they act as Democratic politicians, and some rulings have helped liberal causes. An opinion by Donohue has all but enshrined abortion as a right under the state constitution, for example.
But the justices have broken liberal hearts, too. Some of their rulings dealt a serious blow to gun-control efforts at the local level — which some Democrats didn’t see coming.
I’m having a very yard-sign-and-clipboard experience of this, but I also understand there’s a campaign AGAINST retaining these judges that’s taking the form of attack ads and scary mailers. Who’s funding this stuff? And maybe you can also talk about funding for the race in general.
The judges are supported by a lot of trial lawyers, as well as unions and left-leaning advocacy groups. Opponents include conservative advocates, some of whom have been bankrolled by Jeff Yass, a hedge-fund billionaire who backs a lot of conservative causes. Groups tied to the national political parties have gotten involved as well.
But at least so far, I haven’t seen as much money sloshing around as people feared, or in some cases hoped, there would be. Elon Musk hasn’t shown up with tens of millions of dollars, as he did in a Wisconsin court race earlier this year. So even if you hate these ads … it could be worse.
What happens if the justices LOSE their retention vote?
Their seat will become vacant at the end of the year, until a new judge is elected in 2027. The governor can try to appoint an interim replacement, but any choice would need confirmation from two-thirds of the state Senate. That may not be easy. For one thing, Shapiro is up for re-election next year, and the court could hear election-related cases.
OK, so let’s say the seats remain vacant for the next couple years. What then?
As my colleague Tom Riese and I reported a few days ago, if all three lost there would only be 4 justices left. Two of those ran as Democrats, and two as Republicans. That party split — and just the fact that there is an even number — increases the risk of split opinions. That would mean that the court couldn’t establish a precedent that could be used in other cases. So at a time when so much in law and politics is already up for grabs, we’d have a state court system in which key legal issues might remain unsettled for years.
Is that likely?
Maybe not likely. Only one justice has lost a retention vote, because of anger over Harrisburg pay raises two decades ago. But it’s possible. It’s hard to know, because lots of voters aren’t paying attention. A recent poll showed that while the pro-retention side has an edge among voters, one-third of likely voters don’t know how they will vote.
Well, hopefully this interview helps. Thanks for talking us through it, Chris.
Thank you, Susan. You didn’t make a placating gesture even once!