My previous post about Moore v. Harper, the upcoming Supreme Court case about the North Carolina Supreme Court’s attempt to take control of the state’s congressional redistricting process, dealt with just one aspect of that court’s pattern of judicial fiat.
Last month, the same court invented a bizarre legal test to authorize the judicial invalidation of two voter-approved state constitutional amendments that had been proposed by the legislature, one adopting voter ID requirements and the other imposing a state income tax cap. The justices on the court are elected, and both decisions were decided on a party-line vote with Democrats holding a bare majority on the 4–3 court.
North Carolina is part of a broader problem of runaway state supreme courts. Which is part of a still broader phenomenon that has afflicted the judiciary for many years: the temptation of judges to impose their own policy preferences under the guise of interpreting law.
Such behavior was on display at the U.S. Supreme Court for a long time. The decision in Dobbs v. Jackson Women’s Health Organization sent a resounding message that the nation’s highest court was entering a new era in which such breaches of judicial duty would cease.
But state supreme courts remain the highest authorities on the interpretation of state law, which means that they have the power to do much good or much ill regardless of how well behaved their federal counterpart is. The m.o. of modern political liberalism is to seek as much policy success as possible through the courts.
This has not changed since the days (45 years ago) when U.S. Supreme Court Justice William Brennan egged on “state courts to step into the breach” with inventive interpretations of state constitutions and statutes in order to win the kind of judicial battles that were increasingly being lost by the liberal bloc on the high court.
If anything, today’s political Left is more determined than ever to have state courts seize back the power that the U.S. Supreme Court returned to the people’s elected representatives, as it did when it overturned Roe v. Wade. And as North Carolina illustrates, the perils of state judicial activism extend to the very process by which state legislatures are elected and even their ability to take part in the amendment of state constitutions.
This year, there are 30 states with elections for their highest courts. North Carolina is one of a handful with 4–3 margins in competitive races that may see a change in party control. Two of North Carolina’s Democratic seats are on the ballot, with Sam Ervin IV running for re-election and Robin Hudson’s seat opening up. Among other particularly consequential supreme court elections are those in Illinois, Michigan, and Ohio.
Illinois, which has a Democratic majority, elects its justices by districts, and those district lines have been redrawn for the first time in over 50 years. In its two most competitive races, Republican Michael Burke is fighting to keep a seat on the court while another seat is open. Republican victories in both races would give Republicans the majority.
In Michigan, which has a 4–3 majority of justices endorsed by Democrats, two seats are up this fall, one occupied by Republican-endorsed Brian Zahra and another by Democrat-endorsed Richard Bernstein. They will appear on the same ballot with non-incumbent candidates—without any indication of party affiliation—and the top two vote-getters will win the election.
In Ohio, Republicans have a 4–3 majority, though outgoing Chief Justice Maureen O’Connor sided with the three Democrats to rule against Republican-drawn maps. There are three seats in contention this year. O’Connor’s seat, for which sitting Republican Sharon Kennedy is facing sitting Democrat Jennifer Brunner, is the most competitive. Republican incumbents Pat DeWine and Patrick Fischer are trying to stave off challenges.
As has generally been true of funding disparities between liberal and conservative causes, Democrats have far outspent Republicans to win state supreme court seats. Over five years through 2020, the National Democratic Redistricting Committee, founded by former Attorney General Eric Holder, spent almost $58 million on key supreme court races, including $12.7 million in North Carolina. The Republican State Leadership Committee started to catch up in 2019, when it prioritized countering Democratic plans to flip the Wisconsin Supreme Court, and it plans to spend at least $5 million on key races this year.
The interim executive director of Holder’s organization employs the Left’s typical rallying cry that “democracy is on the ballot.” This is darkly comical, considering that the group’s transparent goal is to seek whatever advantage the Democratic Party can get. For instance, it selectively condemns and challenges gerrymandered maps only when they disadvantage Democrats, ignoring states that do the same to Republicans.
But state supreme court election battles are ramping up with unprecedented money and attention. The actress Julia Louis-Dreyfus has teamed up with the Daily Kos to make a public appeal to help keep or gain Democratic majorities in Michigan, North Carolina, and Ohio. How often do we see celebrities getting involved in state supreme court elections?
Democracy is on the ballot, but how is a point that movement leftists get backwards. The victories they seek would mean the installation of judges for whom overriding the will of the people by fiat to reach favored outcomes is fair game.
Abortion is perceived as being on the ballot across the country, with special intensity in Michigan, a state with a 1931 abortion prohibition on the books. Last Wednesday, a judge on Michigan’s court of claims permanently enjoined the enforcement of that statute as a violation of the state constitution—with no less flimsy a foundation than the U.S. Supreme Court had for its power grab in 1973. The issue will certainly make its way to the state’s highest court, at which point Michigan will face the prospect of the return of a statewide version of Roe v. Wade. In June, Governor Gretchen Whitmer filed her own lawsuit seeking precisely that outcome. “The urgency of the moment is clear—the Michigan court must act now,” Whitmer stated in a press release. Back during times that were more respectful of representative democracy, it was uncommon for governors to flagrantly try to use the courts to circumvent legislatures that would not give them the policies they sought. Whether and where that respect can be regained is what’s at stake in state supreme court elections.