Bench Memos

Survey of State Supreme Court Races and Retention Elections

The most important judicial battle of the 2012 cycle is the one no one is talking about: The winner of the presidential election is likely to alter the ideological balance of the U.S. Supreme Court and many lower courts, perhaps for several decades. 

But regardless of the outcome of the races for federal office, state leaders will continue to dominate the discussion on important policy issues such as school choice, civil liability, and union power. The more successful conservative governors and legislators are, the more you can expect their liberal opponents to use state courts to reverse their losses.

So having a state supreme court that cares about the rule of law and understands the proper role of judges is essential. If you need any evidence for that point, just ask Governor Walker how his collective-bargaining reforms would have fared if liberals had taken control of the Wisconsin Supreme Court in last April’s election.  

Here are brief summaries for several of the state-supreme-court races and retention elections that my colleagues and I are tracking:

Michigan

The Wolverine Supreme Court is currently led by a very narrow 4–3 conservative majority, and that majority is arguably the finest on any court in the country. But with three seats up for grabs on Tuesday, including two belonging to conservative Justices Steve Markman and Brian Zahra, the Left is playing for keeps. As the Wall Street Journal explained in an editorial earlier this week:

The court is a particular union target this year because of Proposal 2, which would apply retroactively. If it passes, unions plan to challenge as illegal as many as 170 current state laws, sending an unprecedented wave of litigation to the state Supreme Court. Big Labor wants its judges making the calls.  The tort bar is also hoping to steer the court to the left. Plaintiffs lawyers have successfully pushed activist judges to overturn tort reform everywhere from Ohio to Florida and Illinois, but Michigan has been a holdout. With the exception of a stint when liberals ran the court between 2008 and 2010, the Michigan Supreme Court has rejected new theories of civil liability and declined to overturn laws limiting non-economic damages. . . . By mid-October, the Democratic Party had already spent some $1.5 million in issue advertising to help liberal candidates who include state District Court Judge Shelia Johnson, University of Michigan law professor Bridget Mary McCormack and Wayne County Circuit Judge Connie Marie Kelley.

North Carolina

The North Carolina Supreme Court is also attracting considerable attention this cycle. Conservatives currently hold a 4-3 majority and, since the only seat up for grabs belongs to conservative Justice Paul Newby, the outcome of the election could shift the balance on the court. Republican Pat McCrory is likely to be the next governor of North Carolina, and you can bet that his political opponents would love it if they could count on a liberal supreme court majority to obstruct his agenda. But the stakes are even higher than that for North Carolina Republicans, because the court is likely to review the redistricting map they passed in 2011

Iowa

The seven-justice Iowa Supreme Court has one swing justice and two three-justice voting blocs (one moderately conservative and the other very liberal). One of the liberal justices, David Wiggins, faces a yes/no retention election and is being targeted by conservatives who were outraged by the Iowa Supreme Court’s decision to invalidate the state’s gay-marriage ban. Much less ink has been dedicated to the fact that Wiggins is a former president of the Iowa Trial Lawyers Association, and that his record on the court is consistent with that pedigree.

If Wiggins is denied retention, the vacancy would be filled by Governor Branstad, under the terms of the state’s Missouri Plan. It is difficult to predict with much certainty whether the state’s nominating commission would send Governor Branstad nominees who are committed to the rule of law, but Wiggins’s defeat would at least pave the way for a moderately conservative majority.  

Florida

The Florida Supreme Court is currently controlled by a 5–2 liberal majority, and three of the liberals stand for retention on Tuesday. If the Michigan Supreme Court majority has the distinction of being one of the finest in the nation, the current majority on the Florida Supreme Court has the distinction of being one of the worst. They have demonstrated a propensity to disregard the rule of law and the proper role of judges in more cases than I can list in this short space.  

Louisiana

Like Michigan and North Carolina, conservatives hold a narrow 4–3 majority on the supreme court in Louisiana, and eight candidates are seeking to replace Chief Justice Kitty Kimball, who will retire in January. Center-right leaders are backing Republican candidate William Morvant, currently a district-court judge. Trial lawyers seem to be divided, but are mainly backing Jeff Hughes, an appellate judge.  

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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