As presidential candidates and state lawmakers campaign on the future of abortion in the United States, elections for the third branch of government have largely escaped scrutiny on the issue.
Until now.
Since the United States Supreme Court overturned Roe v. Wade, elections for state Supreme Court justices have become a new political frontier in the fight against abortion, with interest groups pumping unusual amounts of money into generally little-known races.
An unprecedented $100.8 million was spent on state judicial races this election cycle when the 2022 Dobbs decision overturned Roe, according to the Brennan Center for Justice. Funding from the right and left is now roughly equal, the Brennan Center reported, and the current election cycle is expected to set a record for the most money spent on state Supreme Court elections.
“Whether we like it or not, big spending and issue-based campaigning in state-level judicial races is here to stay,” said Michael Milov-Cordoba, an attorney with the Brennan Center, a nonpartisan think tank on justice and politics.
Last week, super PAC Planned Parenthood Votes and the National Democratic Redistricting Committee announced they would invest $5 million in state Supreme Court races “to protect democracy and reproductive rights.”
“We are fighting the fight of our lives to protect and restore our fundamental freedoms – and our courts are on the front lines,” Alexis McGill Johnson, president and CEO of Planned Parenthood Action Fund, affiliate, said in a statement.
Eighty Supreme Court seats in 33 states will be up for grabs in November. Some judges will run against opponents (abortion was an issue in one such election this month in Georgia). Other outgoing justices face retention votes.
Typically, retention elections go unnoticed and attract little campaigning or media attention. But in the swing state of Arizona, two judges awaiting continuance — Kathryn Hackett King and Clint Bolick — sided with the majority that ruled that the state’s near-total ban on abortion from 1864 replaced the state’s 2022 law against abortions after 15 weeks of pregnancy.
Lawmakers rushed to repeal the 1864 law in a close vote, but a group called Progress Arizona is targeting Bolick and King with a campaign to vote them out.
“Usually I would never bet in favor of someone losing a retention election,” Rebecca Gill, an associate professor of politics at the University of Nevada, Las Vegas, said of the Arizona judges’ chances. “But in this one, I actually think it’s a little more plausible.”
If voters decide not to retain a justice, Gov. Katie Hobbs will decide whether to replace him — the first time in years that a Democratic governor in Arizona has appointed a justice to the state’s highest court.
Arizona’s ballot will also likely feature a proposed constitutional amendment to protect access to abortion, which could get more voters to the polls.
“Some of these culture war cases are just easier for most people to understand,” said Mary Ziegler, a UC Davis law professor and author of “Abortion and the Law in America: Roe v . Wade to the Present.” “There’s also a history in the United States where sex and gender issues are really fundamental and polarizing.”
Since the 2022 midterm elections, Democrats have made abortion a major issue to drive angry voters to the polls. This has become especially true in 2024.
“Let’s be real, I mean, Democrats are not clamoring to be able to vote for Joe Biden,” Gill said. “The enthusiasm isn’t really that high, and so by being able to get those people there, using those abortion provisions on the ballot, it can change the shape of the electorate for this cycle .”
Activism and money for state Supreme Court seats has historically come from the right, experts say. A prime example: In 2010, conservatives, angered by the Iowa Supreme Court’s decision allowing same-sex marriage, targeted three judges up for retention. All three were thrown out of court.
The growing presence of cash in state Supreme Court races could impact which judges run for office, Gill said.
“A lot of judges tend not to be very good at fundraising because it really doesn’t fit with the training of most lawyers,” Gill said. “People who would be put off by the idea of having to raise money, even if it’s done independently, are no longer running for these positions. So changes in the way elections are conducted will absolutely change the candidates.”
Some court observers worry that the increased focus on state-level judicial races could undermine the impartiality of the courts. The Brennan Center supports a merit process for selecting new justices, Milov-Cordoba said, with long-term terms “to avoid some of the politicization that accompanies judicial elections.”
Of course, judges remain bound by the law and cannot unilaterally make policy changes. Bolick, one of the Arizona judges vying to retain their seats in November, vehemently defended his vote on the abortion ruling in an Arizona Republic op-ed last week, lashing out to his opponents for what he saw as their attack on an independent judiciary.
“They claim the abortion ruling reflects the policy preferences of the court majority rather than the law. This is absurd,” he wrote. “Serious commentators, liberal and conservative, who have actually read the decision (which I encourage voters to do), agree that it is firmly grounded in the law.”
Some legal scholars say politics has always been a part of the judiciary, and increased attention is raising awareness of the crucial role judges play in government.
“All judges are representatives, even though we don’t like to think of them as such,” said Todd Curry, an associate professor of politics at the University of Texas at El Paso. “Traditionally, there was a sort of general concern, emanating from the National Bar Assn. — you didn’t really campaign (for judicial seats). Now we’re definitely seeing judges saying, “OK, to do this I have to be a rep.” I actually have to campaign on issues.
John Barrow, a former Democratic congressman, made abortion the center of his recent unsuccessful bid to replace Justice Andrew Pinson on the Georgia Supreme Court.
Georgia’s conservative governor, Brian Kemp, spent $500,000 to support Pinson’s campaign. Pinson previously defended the state’s limitations on abortion while serving as state solicitor general.
Barrow, who sometimes wore a pink T-shirt emblazoned with the phrase “Empower Women” on the campaign trail, argued that Georgia’s constitution protects access to abortion. A lawsuit challenging a 2019 anti-abortion law once a “heartbeat” — actually a beat of embryonic heart cell activity — can be detected, is making its way through Georgia’s court system and could reach the state Supreme Court.
“In this case, you have a heartbeat law in court, and John Barrow specifically says the reason I’m running is to have an abortion on demand in Georgia,” said Cole Muzio, president of Frontline Policy Action, a conservative organization. political action committee in Georgia that supported Pinson. “And that’s something that legislative or statewide candidates can say, but it’s not something that judges are supposed to say, in any area.”
Barrow’s explicit stance on abortion prompted Katherine Wertheim, a fundraising consultant in Ventura, to write postcards for the California candidate. A registered Democrat, Wertheim said she prefers that judicial candidates be open about their positions, so people can make informed decisions about how to vote.
“It’s a beautiful idea to think that judges don’t make up their minds until they see a case,” she said, adding: “I would love to go back to a world where I could believe that judges would be impartial. … But we don’t live in this charming world anymore and so yes, I think it’s completely normal for a candidate to say who he is and how he will vote.
A judge’s position or party is not always obvious to voters. Some states, like Michigan, do not publish their political affiliation on the ballot.
Like neighboring Ohio, Michigan is experiencing contested high court elections in the fall. Both courts now have a slim party majority. In Michigan, where two seats are up for grabs in November, four out of seven judges were appointed by Democrats. Ohio, where Republicans hold the majority, has three seats on the ballot.
Both states have voted to protect access to abortion in their constitutions over the past two years, and cases related to abortion laws are working their way through the courts.
The Florida Supreme Court also has two seats up for grabs after a record pro-abortion year. The recent state court ruling led to a six-week ban on abortion going into effect, but it also allowed passage of a ballot measure that would protect access to abortion.
Wisconsin is perhaps the most notable example in recent history of abortion animating a state Supreme Court race. Liberal Janet Protasiewicz faced conservative Dan Kelly, a former state judge. Whoever won would join the court in ruling on the state’s 1849 abortion ban.
Donors from both sides flooded the state with a total of $51 million, more than double the cost of any previous election for a state Supreme Court seat, according to the Brennan Center. When Protasiewicz won last April, she swung the court toward a Democratic majority. The 1849 law has not yet been brought before the courts.
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