How Pa.’s Supreme Court moved left, and what it means for the GOP

By: - August 9, 2019 7:25 am

Pennsylvania Supreme Court chambers in Harrisburg (Capital-Star photo)

(*Updated: This story was corrected at 11:50 a.m. to correct the spelling of David Senoff’s name.)

It’s been nine years since Pennsylvania Democrats last controlled a chamber of the General Assembly.

With Gov. Tom Wolf’s election in 2014, the party regained its grip over the executive branch. In his four years in office, Wolf has readily wielded his veto pen to quash Republican legislation including a 20-week abortion ban. 

But he’s found himself stonewalled on many Democratic policy priorities such as raising the minimum wage.

Yet Democrats can point to a number of big political wins — most notably a new congressional map in 2018 — that can be traced back to the party’s takeover of the state Supreme Court in 2015.

The majority-Democrat court has also ruled against Republican priorities in several cases, infuriating GOP leaders and prompting efforts to change the court.

The court’s makeup is likely to remain unchanged until at least 2025, when the Democrats elected in 2015 will once again face voters. 

But Republicans appear ready to play the long game, with some lawmakers floating proposals to fundamentally alter how Pennsylvania picks its highest-ranking judges. 

A move to the left

Pennsylvania is one of just eight states that elects its Supreme Court justices in partisan elections, according to Ballotpedia.

The state’s Constitution, re-written in the late 1960s, allows for seven justices. They are elected to an initial term in a partisan race between Democrats and Republicans, as well as third party candidates.

Then, 10 years after getting elected, the justices must stand for a retention election. Justices’ parties are not listed for this yes-or-no vote. If reelected, a justice gets another ten years on the bench. If a majority of voters say their time is up, a special election is called to fill the seat.

These retention elections are usually sure things. Only one justice has lost a retention election in the last 200 years: Russell Nigro in 2005, who became a target for angry Pennsylvanians in the wake of an unpopular government pay hike for legislators, judges, and some members of the Rendell administration.

Justices are elected in a statewide vote in odd numbered-years. Judges must retire at age 75; the mandatory retirement age was raised from 70 when voters approved a constitutional amendment in 2016.

Currently, five of the seven state Supreme Court justices are from Philadelphia or Pittsburgh.

The state Supreme Court is just one level of Pennsylvania’s appellate court system. Beneath the high court are two more appellate benches: Commonwealth Court, which handles challenges to state action; and Superior Court, which handles criminal appeals.

The judges on both of these courts are also elected in partisan races. Republicans currently control both.

The state Supreme Court is also the administrative branch for the entire judicial system, giving it oversight of county Courts of Common Pleas and District Magistrates. It also has professional oversight of attorneys across the commonwealth.

For at least a decade before 2015, the state Supreme Court was controlled by Republicans, according to Bruce Ledewitz, a Duquesne University professor and state court watcher. 

(Editor’s note: Ledewitz is also a Capital-Star opinion contributor.)

But “when there was a Republican majority there [weren’t] any consistently conservative rulings,” Ledewitz said.

As examples of the court’s lack of ideological allegiance, he pointed to a 2013 decision against natural gas developers, a 2012 case that invalidated the Republican-drawn state legislative maps, and a 2014 ruling that struck down a Republican-passed voter ID law

All three of the rulings came down at a time when Pennsylvania had a Republican governor — Tom Corbett — and GOP-controlled Legislature. 

That changed after 2015. Due to a rash of scandals and an age-limited justice, three Supreme Court seats were open at once — enough to flip the court. 

Democratic interest groups, such as trial lawyers and unions, pounced on the opportunity. In total, Democrats and Republicans spent $15.8 million on what the Brennan Center for Justice determined was the most expensive state Supreme Court race in U.S. history.

Democrats swept the 2015 Supreme Court election, winning all three open seats and creating a liberal majority. The victory was made possible, in part, by multiple western Pennsylvania counties that later backed President Donald Trump going blue. 

David Senoff, a Philadelphia-based attorney active in Democratic politics, said that the three Democrats who flipped the court ran by focusing on “economic justice,” which appealed to voters across the commonwealth.

Senoff told the Capital-Star that state judicial races are “not really about conservative with a capital ‘C’ on social issues.” Cases on guns or abortion, he said, are decided based on precedent. 

Instead, Senoff said, the Democrats’ campaigns were “more about making the playing field level and giving parity between bigger entities and individuals.”

A ‘liberal majority’ grounded by the Constitution 

Since 2015, the state Supreme Court has made rulings, large and small, that have at times aligned with Democratic priorities, impacting policy and reshaping the state’s political geography.

They include:

  • Striking down a congressional map drawn by the GOP-controlled Legislature in 2011 as an unconstitutional partisan gerrymander and ordering a new map be implemented in time for the 2018 midterms. The latter especially ticked off Republican lawmakers, who say the court violated the state Constitution by enacting its own map without legislative approval. One Republican even threatened impeachment. 
  • Allowing a lawsuit challenging the state’s education funding to go to trial, over the objection of Democrat Wolf and Republican legislative leaders. Wolf has since changed his mind, but Republicans see it as another example of legislating from the bench.
  • Expanding municipal authority to pass labor laws by upholding Pittsburgh’s paid sick leave ordinance. Republicans have pushed for uniform laws across the state which they say is better for business.
  • Upholding an executive order from Wolf establishing an organization to represent home health care workers in negotiations over wages and conditions. Critics have compared the order to backdoor unionization.
  • Throwing out a 1990s workers compensation law that limited how long partially disabled individuals can receive benefits. This opened up the system to new claims and increased costs for businesses.
  • Sustaining a broad interpretation of the state Constitution’s environmental rights clause, providing a weapon for environmentalists to push for the adoption of new regulations,  like cap-and-trade, without legislative approval.

A committee under the court, whose members are appointed by the justices, also proposed an administrative change earlier this year that would have reopened Philadelphia to medical malpractice suits from across the state. 

Cases were limited to the county where they happened as part of a medical malpractice compromise between lawyers and health care providers in the early 2000s. After Republican outrage, the committee’s change was delayed pending a study.

Looking at the rulings, Duquesne’s Ledewitz said the court’s leftward shift is clear. But he doesn’t think the court is creating “non-textual rights,” or inferring new legal standards from the state Constitution that aren’t explicitly written.

Instead, Ledewitz argues the court has dusted off long underused clauses and is “breathing life into provisions that are absolutely there but not utilized.” He pegs the start of this trend to before 2015, to the term of former Republican Chief Justice Ronald D. Castille.

“This liberal majority is much more activist. It is also very well-grounded by the text and history of the Pennsylvania Constitution,” Ledewitz said. “You have to give them that.”

But between the donations dropped by Democratic interest groups and the choice of cases, Republicans still see the court’s swing as nothing more than money talking.

“The change most recently has been so dramatic and almost in your face. Like, ‘Ha, ha, look what we did,’” House Judiciary Committee Chairman Rob Kauffman, R-Franklin, said earlier this year following a committee vote on laws to change the courts. “That’s not how the courts are supposed to work.”

The GOP responds 

Some Republicans admit that they are only in this situation because of complacency in 2015.

David Patti was the director of the Pennsylvania Business Council’s political action committee during the 2015 judicial races. The council was a business advocacy group that has since been absorbed by the Pennsylvania Chamber of Business and Industry.

Patti told the Capital-Star he couldn’t drum up enthusiasm for the Supreme Court races among business groups, traditionally strong Republican donors, during his tenure

“I would call businesses and entrepreneurs, and they would say, ‘We don’t participate in judicial races,’” Patti told the Capital-Star. “Our guys just wouldn’t play. I think they now say they learned their lesson.”

He added that his PAC’s strategy to endorse two Republican candidates and one Democrat — all women — led to backbiting by some wealthy donors. They “didn’t like that I had the audacity to endorse one Democrat,” Patti said.

As the rulings have piled up since 2015, Republicans have talked openly in the Capitol about changing how the state’s judges are selected.

Two main ideas have emerged: merit selection, which allows political appointees and elected officials to pick judges; and creating districts across the state for appellate judges.

Under a bill introduced by Rep. Paul Schemel, R-Franklin, a panel of political appointees picked by the governor and the General Assembly would create a shortlist of qualified judicial candidates for statewide appellate courts. The governor would select one to fill an opening, and the Senate would be tasked with confirmation. 

The selected judge would serve for four years before facing a nonpartisan retention election. If the judge wins, they stay and must stand for retention every subsequent ten years. 

Schemel’s bill has bipartisan backing. According to Ballotpedia, at least 22 states use merit selection for some of their judges.

The reform already on its way to final approval this fall — albeit just one fifth of the way there — is a bill that would create districts for judges who make statewide rulings. 

Under a proposal that could come up for a final vote in the House at any time once lawmakers return in September, the General Assembly would divide the state into nine Commonwealth Court districts; 15 Superior Court districts; and seven Supreme Court districts. 

Senate Republicans amended a similar proposal into a redistricting bill last year, defending it as an effort to add a mix of regional representation to the high courts. Currently, at least four states elect their Supreme Court justices by district.

The judicial measure killed Democratic support for the Senate redistricting bill. Senate Minority Leader Jay Costa, D-Allegheny, portrayed it as an attempt by Republicans to take revenge on the Supreme Court for the still-fresh gerrymandering ruling. 

Rep. Russ Diamond, R-Lebanon, who’s sponsoring the House proposal, sees his bill as an attempt to add ideological and racial variety to the courts.

“Democrats can spin it any way they want, but it’s a good idea to have diversity on the court,” Diamond told the Capital-Star.

He asserted that a Philadelphia-centered judicial district would create a better chance of electing a black justice than a statewide race. 

At least three black justices have served on Pennsylvania’s highest court. They include the first black woman to serve on a state’s highest bench — Juanita Kidd Stout, appointed in 1988 — according to a July 2019 report from the Brennan Center for Justice.

Stout served at the same time as Robert N.C. Nix Jr., Pennsylvania’s first — and only — elected black justice. Serving from 1972 until 1996,  he held the title of chief justice for the last 12 years of his service.

But at the moment, all seven justices are white, while nearly a fourth of Pennsylvania’s population is not. 

The Brennan report stated that “judicial elections have rarely been a path to the Supreme Court bench for people of color, and they have often been a path off the bench for incumbents of color.” The center instead suggested appointment is a better path to increase diversity.

While Diamond touts possible advantages to judicial districts, there are possible drawbacks, too.

Under his bill, the General Assembly would draw the district lines — raising the question of whether the courts’ maps would be gerrymandered as well.

There’s another obstacle for Diamond’s bill: It requires a constitutional amendment. 

Such proposals must pass both chambers of the General Assembly in two consecutive sessions, then go to the voters for final approval.

Diamond said his support for judicial districts has nothing to do with the court’s lurch left, adding that the idea is not new. He said he picked up the idea from a former lawmaker who ran and lost for appellate judgeships in the ‘90s.

But Ledewitz took a dimmer view, calling the proposal “nothing more than an attempt by one party or another to gain a partisan advantage.”

“It would never be talked about if three Republicans were elected instead of three Democrats,” he said.

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Stephen Caruso
Stephen Caruso

Stephen Caruso is a former senior reporter with Pennsylvania Capital-Star. Before working with the Capital-Star he covered Pennsylvania state government for The PLS Reporter.