Jurisprudence

State Judge Elections Are About to Become Decisive for Abortion Rights

Abortion protesters fill the streets of Austin with signs like "Abortion on Demand & Without Apology."
Abortion rights demonstrators march near the State Capitol in Austin, Texas, June 25, 2022. Suzanne Cordeiro/Getty Images

After a term in which the Supreme Court purported to return the issue of abortion and other central questions to the states, America’s state courts have never been more important. As I’ve written previously, they’ve also never been more at risk. In the past year alone, state judges have stopped extremist politicians from putting up barriers to voting, defended education funding, and ruled in favor of LGBTQ rights. Courts are now set to decide key questions on abortion rights in states like Florida, Wisconsin, and Michigan. This responsibility could not be greater.

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But with great power comes greater audacity from wealthy special interest groups looking to take control of state judiciaries, and 2022 could be their best chance yet. More than 80 state supreme court seats in 32 states are up for election this November. Unlike other, generally more expensive contests for governor and state legislature seats, judicial elections offer serious bang-for-buck for dark money groups that have invested accordingly.

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Since the turn of the century, more than $500 million has been spent to influence state court elections, according to estimates from the Brennan Center for Justice, and the groups writing the checks aren’t doing so out of the goodness of their hearts. Time and again, we see that the groups flooding state judicial elections with money are the same ones whose money paved the way for the right-wing assault on the U.S. Supreme Court. If shadowy conservative donors have their way, the polemics and controversy which have become commonplace on the nation’s highest court could soon become a feature of state courts.

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The identities of those bankrolling efforts to hijack state courts are often shrouded in dark money, but at the heart of this darkness are a few names we do know. Conservative lawyer Leonard Leo is the head of the court-obsessed Federalist Society and one of the architects of the right-wing gambit on undermining judicial independence on state and federal levels. Realizing that Republicans had lost public support on key issues like abortion rights and LGBTQ rights, conservatives constructed a revanchist strategy to entrench their retrograde views into law by seating far-right judges across the country. It was the Federalist Society that prepared a list of hand-picked judges for former President Donald Trump to nominate to the Supreme Court – a list that included the names of current Justices Neil Gorsuch, Brett Kavanugh, and Amy Coney Barret who cast the decisive votes in Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe v. Wade and ended the constitutional right to an abortion.

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Beyond the Federalist Society, Leo also leads the Judicial Crisis Network, which has been a source of significant funding for major partisan spending groups like the Republican State Leadership Committee, which dropped $20 million on state supreme court races in the last decade alone. The RSLC is notorious for its tactics of directing millions of dollars in last-minute spending towards state court races days before an election. In many cases, ads purchased by the group feature scaremongering tactics, attacking judges for being “soft on crime.”

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Earlier this year, RSLC announced plans to spend more this cycle than in any before. The group’s largest funders, beyond the Judicial Crisis Network, include Koch Industries and the U.S. Chamber of Commerce. And while the RSLC is a big player in this dark money space, they’re far from the only one.

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The bottom line is that big money is drowning out the voices of regular people when it comes to selecting our judges. The more spending we allow in our judicial elections, the greater the damage done to the impartiality of our courts. In spending on state courts, the RSLC, like other big-money partisan groups, hopes to turn our state judiciaries into another domain of the hyper-partisan politics we’ve come to expect from elected officials and the U.S. Supreme Court.

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And what about those elected officials? Well, next to the problem of big money in court elections, the threat posed by extremist politicians looking to undermine the independence of state courts is just as dangerous.

North Carolinians, unfortunately, have had front row seats to several attacks on state courts. In the past five years, our Republican-controlled legislature has made all judicial elections, including Supreme Court elections partisan, caused confusion by canceling judicial primary elections, eliminated public funds for judicial elections, and even tried, but failed, to give itself the power to fill judicial vacancies. Earlier this year, Republican operatives even went as far to float the idea of impeaching judges whose decisions they disagree with.

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These kinds of extremist efforts aren’t limited to North Carolina, either. In 2021, politicians in 35 states proposed more than 150 bills that either politicize state judiciaries or curb their authority to decide major issues like abortions and election management, according to an analysis from the Brennan Center.

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In Pennsylvania, Republican politicians, who in years past threatened to impeach judges they disagreed with, have now taken to pushing changes to how state Supreme Court justices are elected as a way to seat more like-minded judges, no matter what majorities of the state’s voters actually want. Meanwhile, one state over, Ohio Republicans chose the nuclear option, deciding to completely ignore their high courts orders to draw fairer, less gerrymandered electoral districts for state and congressional elections (this came on the heels of a call by some state Republicans to impeach a sitting chief justice for her decision against earlier versions of their electoral maps).

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These kinds of belligerent attacks on courts, along with spending from partisan big-money groups, affect all of us. Think of our state governments like a three-legged stool—take out a leg and everything comes crashing down. This will be especially true in the post-Dobbs world, where abortion rights are going to be litigated across state-by-state legal minefields. That’s why it’s so important that our courts remain fair and independent. We need them to represent our communities and prioritize their laws and state constitutions, not the interests of shadowy groups and power-hungry politicians. We don’t need dark money and power grabs. We need more transparency, stronger judicial ethics codes, and a judiciary that’s both highly qualified and representative of the communities it serves. With November’s judicial elections fast approaching, the stakes for our courts couldn’t be higher.

Courts decide the quality of our water and air, the funding for our schools, and the safety of our neighborhoods; they are the backstop for all of our constitutional rights and freedoms, including workers’ rights, LGBTQ rights, and reproductive health care rights. Now is the time for our communities to stand up and fight for fair, representative, and independent courts to make sure our voices are heard in the states.

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