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.
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.
Evidence of the court’s greater deference to the legislature can be found in other areas as well. In education, for example, the court rejected legal challenges to legislation authorizing charter schools and has abandoned the Gang of Four’s effort to force a $1 billion-plus reorganization of state school funding by declaring existing school funding unconstitutional. The court has shown broad deference to other legislative actions as well, upholding the state’s nonparental visitation statute, domestic violence statute, and incest statute against constitutional and other challenges.
While the court appears less likely to invalidate state statutes on questionable legal grounds, it continues to scrutinize government actions to ensure they are constitutional. Perhaps most notably, the court unanimously limited the use of eminent domain in Ohio, holding that economic development, by itself, is insufficient to satisfy the Ohio constitution’s “public use” requirement. The court’s opinion, written by Justice O’Connor, adopted a more property-protective position than did the U.S. Supreme Court in Kelo v. New London. In other cases, the court rejected an “antiprocreation condition” placed upon a criminal defendant subject to community control as unconstitutionally overbroad, and refused to invalidate a surrogacy contract because it allegedly violated public policy concerns, leaving such a decision in the hands of the legislature, where it belongs.
Some have been quick to accuse the Ohio supreme court of adopting a knee-jerk “pro-business” posture or, worse, of aggressively working to enact a “conservative” or “pro-business” legal agenda. A review of the court’s most prominent and consequential decisions of the past several years appears not to bear out such criticisms. When forced to choose between a “conservative” or “pro-business” outcome on the one hand, and the will of the legislature on the other, the court has generally followed the latter course. The common thread in the court’s recent decisions is not a particular outcome, but a particular approach. The court’s deferential review of state legislation could, and likely would, become quite “anti-business” were the legislature to adopt “anti-business” measures. Under the court’s current approach, such policy choices are left in the hands of the political branches.
Although all seven of the Ohio supreme court’s current justices are registered Republicans, significant differences among the justices remain. Dissenting opinions are quite common, and many important cases are still decided 4-3 or 5-2. While Justices Stratton and O’Connor are fairly consistent votes for a modest judicial role — neither supported the Gang of Four — other justices on the court are more willing to substitute their policy preferences for those of the legislature and adopt expansive interpretations of state constitutional provisions.
It’s possible that Ohio voters will determine the outcome of the presidential race on November 4. But it’s certain Ohio voters will determine the composition of the Ohio supreme court. In choosing between two incumbent justices and their challengers, Ohioans will decide whether they like the Supreme Court’s turn toward judicial modesty. At stake is whether the current trends on the Ohio supreme court are likely to continue. However Ohioans decide, it could affect Ohio’s legal system for years to come.
– NRO contributing editor Jonathan H. Adler is professor of law and Director of the Center for Business Law & Regulation at the Case Western Reserve University School of Law. He is the author (with Christina M. Adler) of the Federalist Society White Paper, A More Modest Court: The Ohio Supreme Court’s Newfound Judicial Restraint, from which portions of this article are adapted..