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Pennsylvania voters will decide in November whether to retain three state Supreme Court justices – all Democrats – in an election with major ramifications for the composition of the commonwealth’s top appellate court.
Justices on the seven-member Supreme Court, which has a 5-2 Democratic majority, are each elected to serve 10-year terms. When justices already serving on the bench reach the end of their cycles, they face retention elections with simple “yes” or “no” votes on whether to give them another 10-year term. A judge needs a majority to retain the seat. Partisan judicial elections are only held when the court has vacancies, most often because a justice has reached the state’s age limit of 75 years old. Rarely do seats open up as a result of a justice losing a retention election, which has happened only once since 2000.
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“Pennsylvania traditionally has between 25% and one-third of people vote no on judicial retention candidates,” said David Senoff, a Philadelphia-based attorney who has helped lead past retention campaigns for both Democrats and Republicans on the state Supreme Court. “If you have a really organized ‘vote no’ campaign, maybe you can get that number close to 50%.”
The three justices up for retention this year – Kevin Dougherty, Christine Donohue and David Wecht – each were elected to the Supreme Court in 2015 in a historically unusual cycle with three vacancies. The three Democrats soundly outperformed their GOP opponents that year, capturing a majority on the court after Republicans had held the advantage for more than a decade.
Campaign spending on the 2015 race topped $16 million, making it the most expensive state Supreme Court election in U.S. history at the time. When Justices Kevin Brobson, a Republican, and Daniel McCaffery, Democrat, were elected in races for single open seats in 2021 and 2023, respectively, spending in each surpassed $10 million.
Retention elections typically don’t attract as much money or attention, in part because candidates are not running against opponents, but this year is viewed as an outlier because it presents a rare chance for Republicans to free up as many as three seats.
With just over a month to go before the Nov. 4 election, filings from the three justices up for retention show they have already raised nearly $3 million combined. TV and online ads from interest groups have cast the races, normally a down-ballot issue, as an ideological moment of truth for Pennsylvania.
“This year’s retention elections have certainly drawn increased attention because of the hyper-politicized environment that we are in generally,” said civil litigation lawyer John Hare, who co-chairs the Pennsylvania Supreme Court’s Historical Commission and Commission on Judicial Independence. “If past is prologue, this court will be required to decide the most important issues that jurists are called upon to decide – civil rights, the death penalty, redistricting, issues of life and death.”
‘We want them in courthouses’
The Pennsylvania Supreme Court was established in 1722 and is the oldest continuously operating appellate court in the Western Hemisphere. While justices were originally appointed by the governor with Senate confirmation, the switch to an electoral system was made in 1850 with an amendment to the state Constitution.
“Whether appointed or elected judges are better has been debated by Pennsylvanians for decades,” Hare said.
In the late 1950s, a state commission sought to reform judicial selection to an initial appointment system followed by retention votes. That effort was voted down by the public, but the search for a balanced approach led to the establishment of the current elections and retention cycles in 1968.
“The more overt politicking required by an elective system is seen as distasteful for judges who generally are – and are supposed to be – above politics,” Hare said. “That has been the main criticism, the necessary interjection of political realities into judicial races.”
One of the challenges for justices seeking retention is that they have to campaign in ways that don’t violate judicial ethics. This year, even though justices are barred from partisan campaigning and discussing cases, the three Democrats up for retention have jointly held public forums in Philadelphia to talk about the impartiality of the court system.
“The collective wisdom is we don’t want our judges out on the campaign trail,” Senoff said. “It doesn’t matter what party they are. We want them in courthouses doing their work.”
Pennsylvania has fewer campaign finance limitations on judicial candidates than races for any other statewide office. There are no caps on individual donations. Outside of ethics considerations, the only restriction for judges already on the bench is that they can’t start raising money until after the November election of the year prior to their retention vote.
Senoff said many judges voluntarily make adjustments during and after their campaigns to account for taking money from lawyers and businesspeople, including those with pending cases. They may temporarily recuse themselves from cases connected to campaign donors to avoid the appearance of bias or impropriety.
In the legal community, attorneys routinely support candidates from both parties and view retention elections as a nonpartisan procedure.
“I know people don’t ever believe that,” Senoff said. “But on the ballot there will be no party identification. It’s just ‘yes’ or ‘no’ for a particular judge.”
History favors justices up for retention
The last time a Supreme Court justice in Pennsylvania lost a retention bid was in 2005, when Philadelphia-based Justice Russell Nigro, a Democrat, was voted off the court by a 51%-49% margin. Justice Sandra Schultz Newman, a Republican from Philadelphia, narrowly retained her seat with 54% of the vote that year.
The retention election in 2005 is considered an odd case. Months earlier, the state legislature approved a pay raise for state lawmakers, judges and top elected officials during an early-morning session with minimal public notice. Lawmakers voting to give government officials raises was an unpopular move that many voters took out on judges who benefited but were not directly involved.
“The governor signed it and the judges were part of that pay raise, and so it was easy to paint the judges as part of this ‘midnight pay raise,” Senoff said.
Dougherty, Donohue and Wecht do not face an immediate uproar against state government and none of them are enveloped by scandal, which also has cost justices their seats in years past.
Before his election to the Supreme Court, Dougherty spent 14 years on the Pennsylvania Court of Common Pleas in Philadelphia specializing in family law cases. Donohue was a trial lawyer in Allegheny County for decades and served as state Superior Court judge before reaching the Supreme Court. Wecht similarly served as a Superior Court judge, also with a background in family law, before he was elected to the Supreme Court.
Some of the “vote no” messaging about the three Democratic justices has lumped them together as part of a decade-long Supreme Court majority that authored contentious decisions regarding COVID-19 protocols, education, redistricting and other issues.
“Those cases become magnified during campaign season, and they do tend to capture the public’s attention because they are so easily exploited by either side,” Hare said. “The ‘vote yes’ ads that are on TV focus on abortion and contraception. I think in a swing state like Pennsylvania, those hot-button national issues will always resonate because all you need to do is swing a couple percent of the electorate.”
In the event that any of the three justices are not retained, Pennsylvania Gov. Josh Shapiro, a Democrat, would then be able to appoint interim judges that would require consent from the Republican-controlled Senate. A battle over replacements could disrupt the court’s operations until an open, partisan election would be held next year to fill the vacancy.
The Democratic National Committee announced last week it will make a “six-figure investment” to protect Pennsylvania’s high court from “MAGA extremists” and the influence of “billionaires across the country” as their spending increases on the “vote no” campaign.
“I think with PACs, candidates and others, this race could easily reach $10 million,” said Deborah Gross, president of the nonprofit Pennsylvanians for Modern Courts, which educates the public about the judiciary and advocates for impartiality and fairness in the courts. “This will definitely be the most expensive retention race is PA history.”
Gross noted that all three justices have been endorsed by the Pennsylvania Bar Association, the state’s influential professional association for lawyers.
Among the general voting public, Senoff said it’s common for people to tune out judicial elections. Many voters have difficulty remembering candidates’ names, and telling them to “vote no” could even end up impacting Republican judges in lower court races.
A spending blitz on ads may ramp up visibility and partisan antagonism, but Senoff is skeptical that it will significantly move the needle in November. He said it’s harder to motivate people to vote to remove a single candidate than it is to get them to choose between one or another.
“You have to convince the voters to fire people,” he said. “If there’s not something that this particular justice has done that you think is so beyond the pale, generally it’s better to vote retain your judges. At a minimum, you retain consistency. If you lose three justices who have been there for 10 years, the combined institutional knowledge loss would be outrageous.”
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Michael Tanenbaum
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