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Justice on the Ballot
The Ohio supreme court has become more restrained. Will this continue after November 4?


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Jonathan H. Adler

Ohio voters may play a pivotal role in the presidential election. This, in turn, could have a profound impact on the future of the U.S. Supreme Court, as the next president is likely to nominate at least two justices. Choices made by Ohio voters could also have a profound impact on Ohio law, as two justices on the Ohio supreme court are up for reelection. Whether Ohio voters return Evelyn Lundberg Stratton and Maureen O’Connor to the Supreme Court could determine whether the current, largely favorable, trends in Ohio law continue in the years to come.

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During the 1990s, the Ohio supreme court developed a reputation for aggressively intervening in controversial policy matters and overturning legislative enactments. From tort reform to school funding, the court imposed its policy preferences on the state, often embracing dubious legal arguments in the process. A group of liberal justices, dubbed the “Gang of Four” by the Toledo Blade, repeatedly invalidated the state system of school financing and struck down tort-reform legislation with impunity.

During this period Ohio’s highest court also developed a reputation for embracing dubious legal theories and particularly innovative (if unfounded) arguments. In 1993, a prominent legal academic excoriated the court for its handling of a First Amendment case in which “not one justice” on the divided court, “analyzed the case competently.” In 2001 the court declared a federal constitutional right protected by substantive due process, even though the Court could have reached the same result on independent and sufficient state grounds.

Beginning in 2002, things started to change. Public outcry and the election of new justices to the court caused a gradual shift in the court’s posture and orientation. As the more liberal justices retired, Ohio voters elected more conservative replacements. Today, only one of the “Gang of Four” remains on the court. As a result, the court is significantly more deferential to the legislature and less likely to expand or invent new causes of action. As a recent report by the Center for Legal Policy at the Manhattan Institute concluded, the court has begun to issue “reasonably predictable rulings” producing a “friendlier and fairer” legal environment for business.

Before these changes the Ohio supreme court had repeatedly struck down legislative efforts at tort reform, but not anymore. In 2007, the Ccourt voted 5-2 in Arbino v. Johnson & Johnson to uphold tort reform legislation that capped non-economic and punitive damages. In other recent cases the Court has upheld subrogation requirements and the statutory exclusion of certain types of injuries from those covered by workers’ compensation. The current court is also largely unsympathetic to new and innovative tort claims or cases that seek judicial revision of existing rules or statutes to facilitate plaintiffs’ actions. A 2006 analysis by the New York Times found the success rate for major plaintiffs’ firms before the supreme court was significantly lower from 2004-2006 than it had been in the prior three years.



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