While they’re rarely successful, efforts to remove state Supreme Court justices over policy disagreements are becoming more common.
Not long after the Pennsylvania Supreme Court threw out the state’s Republican-drawn congressional map earlier this year — a boon for Democrats who hope to flip control of the U.S. House in November — some Republicans state legislators came up with an idea. They proposed impeaching the justices who signed on to the ruling.
The impeachment effort targeted justices Christine Donohue, Kevin Dougherty, Debra Todd and David Wecht, all of whom were elected as Democrats and agreed that the old map was an impermissible partisan gerrymander.
The Republican lawmakers said they wouldn’t target Justice Max Baer, a Democrat who disagreed with the majority on procedural grounds, or the court’s two Republicans, Sallie Updyke Mundy and Chief Justice Thomas Saylor.
But before the effort could get off the ground, two prominent Republicans came out against the impeachment bid: Chief Justice Saylor and House Majority Leader Dave Reed. “Threats of impeachment directed against justices because of their decision in a particular case are an attack upon an independent judiciary, which is an essential component of our constitutional plan of government,” Saylor said in a statement.
For his part, Reed, the GOP legislator whose support would be needed to pursue impeachment, said that “while I believe the state Supreme Court’s decision to draw and implement their own congressional redistricting map is wrong, disagreement over the outcome of any particular case should not be grounds for impeachment.”
The statements by Saylor and Reed have likely doomed the impeachment idea. “Republicans, particularly those in the legislature, are extremely agitated by the Supreme Court’s redistricting decision. However, I see very little chance that the impeachment call will go beyond a saber-rattling stage,” says Christopher Borick, a political scientist at Muhlenberg College. “I don’t think there is a real appetite to push the state into a constitutional crisis.”
If the impeachment effort in Pennsylvania does peter out, it will join other failed attempts by politicians to oust members of the judiciary due to policy disagreements. Of course, it’s rare in American history to try to remove sitting judges for such reasons. But it has been occurring somewhat more regularly in recent years, according to observers who watch the judiciary.
“There was a point in time where these sorts of elections were relative one-offs,” says William Raftery, a senior analyst with the National Center for State Courts. “Now we’re starting to see one example somewhere in nearly every election cycle.”
Sometimes these efforts take the form of impeachment, as was the case in in Pennsylvania. Other times, they take the shape of recall efforts. And still other times, they come in the form of contested retention elections, a process in which the public votes to retain or remove a judge after they’ve served for a certain number of years on the bench.
Retention elections are usually sleepy affairs where no opponent appears on the ballot and voters merely choose to either “retain” or “remove” the current judge. But on a few occasions in recent years, judges have found themselves facing aggressive and well-funded campaigns aimed at their removal.
The most recent example of a successful ouster effort came in Iowa in 2010. The year before, the state Supreme Court had validated same-sex couples’ right to marry. Critics of that decision organized an effort to defeat the three justices who faced retention elections: Chief Justice Marsha K. Ternus and justices Michael J. Streit and David L. Baker.
On Election Day, each of the three Iowa justices on the ballot failed to clear the 50 percent mark and were removed, even as every lower court judge facing an election was retained. “I think it will send a message across the country that the power resides with the people,” Bob Vander Plaats, who led the campaign against the justices, told The New York Times after the results were in. “It’s we the people, not we the courts.”
However, talk of impeaching the remainder of the justices cooled, and the one justice who faced a retention election in 2012, David Wiggins, was returned to the bench. “Public opinion in the state on the issue shifted quite quickly,” says Christopher Larimer, a University of Northern Iowa political scientist.
Indeed, the successful 2010 ousters in Iowa are a historical outlier. That same year, conservative efforts to remove judges who faced retention elections failed in Alaska, Colorado, Kansas, Illinois and Florida. “Most of these efforts fade out and don’t succeed,” Raftery says, adding that such attempts are “a shot across the bow” intended to remind judges that they’re ultimately accountable to the people.
Florida has been home to several such attempts. But despite the fireworks, “Florida has never failed to retain a justice,” says Susan MacManus, a University of South Florida political scientist.
In 1990, anti-abortion groups sought to remove state Supreme Court Justice Leander Shaw after he authored a 4-3 decision that found unconstitutional a Florida law requiring parental consent before a minor could have an abortion. His share of the retention vote — a little under 60 percent — was a bit closer than typical elections, but he still won without much trouble.
More than a decade later, after the disputed 2000 presidential election in Florida, some conservative groups sought to oust two Democratic appointees — Harry Lee Anstead and Charles T. Wells — for their role in extending the vote recount that kept Democratic nominee Al Gore’s hopes alive. But both justices survived their retention election with more than 65 percent of the vote.
And finally, in 2012, three supreme court justices — R. Fred Lewis, Barbara Pariente and Peggy Quince — were targeted by Tea Party-aligned groups. A failure to win retention would have given Republican Gov. Rick Scott “an opportunity to remake the court,” says Aubrey Jewett, a University of Central Florida political scientist. “The coalition raised money and paid for ads criticizing the justices, and the justices actually had to raise money and ‘campaign’ to keep their seats. But in the end, each won about two-thirds of the vote.”
Other failed ousters include an effort in Tennessee in 2014, where three state Supreme Court justices appointed by Democrats — Chief Justice Gary Wade and justices Connie Clark and Sharon Lee — survived retention elections despite an effort led by Republican Lt. Gov. Ron Ramsey to remove them. Not only could their ouster have handed the Supreme Court majority to Republicans, but in Tennessee the court is tasked with appointing the state attorney general. The judges won about 55 percent of the retention vote.
In Washington state in 2016, three justices targeted by pro-business interests — Chief Justice Barbara Madsen, Charles Wiggins and Mary Yu — won reelection against their challengers. The well-funded opposition cited rulings they considered anti-business, as well as a decision against school choice.
That same year in Kansas, five state Supreme Court justices — Chief Justice Lawton Nuss and justices Carol Beier, Dan Biles, Marla Luckert and Caleb Stegall — survived a concerted effort by conservatives to remove the justices over controversial decisions on school finance and a murder case in which one of their rulings was eventually overturned by the U.S. Supreme Court. The ouster effort spurred upwards of $1 million in spending.
“Much of the campaigning was under the radar screen — lots of postcards and robocalls, and some social media,” says Burdett Loomis, a University of Kansas political scientist.
In the end, the judges were all retained with at least 55 percent of the vote. Given that Donald Trump won Kansas handily that day, the successful retention of the challenged justices “was no mean feat,” Loomis says.
Most of the efforts to oust judges have come from the ideological right; but not exclusively so.
For instance, there’s a pending effort to recall California Superior Court Judge Aaron Persky for imposing what many saw as a relatively light sentence on Brock Turner, a Stanford University athlete, after a sexual assault conviction. The recall effort has been backed by at least 10 elected Democratic officials and was steered to the June 5 ballot by Democratic consultants.
On occasion, critics have eschewed impeachment, recalls or opposition in a retention election in favor of legislative hardball, such as eliminating funding for the courts.
In Arizona, for instance, lawmakers tried in 2012 to flex their muscles by seeking to cut the state’s court of appeals from 22 judges to six. And in Kansas four years later, the legislature initially passed, then repealed a law to cut the judiciary’s budget to zero if the courts struck down certain state laws.
It’s not a coincidence that, on balance, the vast majority of efforts to put courts on a leash have failed.
In each of the Florida cases, for instance, the decisive factor in keeping the justices on the bench was that “the justices were still within the broad mainstream of public opinion, even when a majority of the public might have disagreed with the decision, as was the case with overturning the parental consent law,” Jewett says. “The majority of voters were comfortable with keeping them on the court.”
Douglas Keith, a counsel at the Brennan Center for Justice at the New York University School of Law, agrees that that this don’t-rock-the-boat pattern has prevailed nationally. The string of losing efforts to bounce judges, he says, “is likely due in large part to the condemnation they’ve been met with from across the political spectrum. The public gets that judges need to be independent and free from political pressure. There may be a handful of officials who think it is in their political interests to stir up impeachment talk, but, by and large, elected officials seem to know that voters aren’t going to tolerate this kind of encroachment on basic separation of powers principles.”
And judges ultimately have an ace in the hole: their reputation. As recently as December, the National Center for State Courts found that state courts had a 71 percent confidence rating, compared to 61 percent for governors and 57 percent for legislatures.