High Stakes Supreme Court Elections in Wisconsin and Pennsylvania

Only two states are holding races this year for spots on their high courts, but the elections involve some of the highest stakes and most expensive judicial contests ever. In fact, with about a month left before an April 1 election for a seat on the Wisconsin Supreme Court, the race has seen more than $33 million in spending, including $6 million from groups affiliated with Elon Musk, the world’s richest man. 

At a time when state supreme courts and their elections are getting more attention than ever, ideological court majorities are up for grabs in both Wisconsin and Pennsylvania. (Louisiana could have held an election this year as well, but the election was canceled after only one candidate filed to run for the seat.) Just two years ago, Wisconsin and Pennsylvania set records with the two most expensive judicial elections ever.

In Wisconsin, the 2023 election flipped the ideological majority on the court in favor of progressives for the first time in over a decade. Now, with the retirement of a member of the progressive wing of the court, that majority could flip back if conservatives’ preferred candidate, former Republican attorney general and current trial court judge Brad Schimel, wins the seat. Schimel is running for the open seat against trial court judge Susan Crawford, who has been endorsed by the state Democratic Party, in the nonpartisan election.

The impact of the court’s new progressive majority has been perhaps clearest in its election-related docket. In one 2024 decision, the court divided 4–3 along ideological lines to allow election administrators to use drop boxes to collect absentee ballots. That opinion overturned a high-profile decision the court’s conservative majority had issued just two years earlier. In another major decision, the same 4–3 majority ordered the redrawing of state legislative districts, which were based on maps drawn by the state’s Republican-majority legislature, after the prior court majority had declined to do so.

The election could also have an almost immediate impact on abortion rights in the state. Late last year, the current court heard oral arguments in Kaul v. Urmanski, which will decide whether a 176-year-old law bans abortion in the state. If the court rules that the law does limit abortion access, a case brought by Planned Parenthood asks the court to hold that the Wisconsin Constitution protects the right to an abortion. While the court heard Kaul with its current members and will likely issue a decision before a new justice is seated, the new justice would almost certainly be on the bench in time to participate in Planned Parenthood.

The fight for abortion rights has heightened the stakes of the elections for states’ highest courts across the country. Since the U.S. Supreme Court overturned Roe v. Wade three years ago, shifting many legal fights about abortion access to state courts, state judicial races have shattered spending records, made national headlines, and seen campaign messaging that more closely resemble a race for a key U.S. Senate seat than the more mundane state judicial elections of even a few years ago. 

As a result, Wisconsin political commentators predict this race will again be the most expensive judicial election ever, surpassing the 2023 election’s approximately $56 million in spending by candidates, political parties, and interest groups. The $33 million these spenders have already poured into this year’s race includes more than $13 million from national interest groups, according to filings with the state ethics commission and data on TV spending collected through the Brennan Center’s Buying Time project. So far, much more of the money — $20 million — is benefiting Schimel than Crawford.

In Pennsylvania, the 5–2 Democratic majority is similarly at stake in this year’s elections, though on a slightly longer timeline. In November, three sitting justices, Christine Donohue, Kevin Dougherty, and David Wecht, all Democrats, will stand in retention elections. Justices do not face opponents in such elections; rather, voters cast a yes-no ballot about whether to give a justice another 10-year term on the court. If voters decline to do so, that empty seat would be filled temporarily by Gov. Josh Shapiro (D), subject to confirmation by the state senate, and then filled for a full term via a partisan election to be held in 2027. Should all three justices facing retention election this year lose the vote, the majority would be up for grabs in the 2027 election.

Some of the Pennsylvania court’s highest profile decisions last year depended on the votes of justices standing for retention this year. That includes a decision in the final days of the 2024 election allowing voters to cast a provisional ballot if the mail ballots they submitted were disqualified for technical reasons.

Like in Wisconsin, new justices in Pennsylvania, whether appointed or elected, may be poised to decide whether the state constitution protects the right to an abortion. A decision early last year reinstated a lawsuit challenging a ban on Medicaid funding for abortion, allowing the case to continue in the lower courts. A majority of justices declined at that time to reach the question of whether the constitution protects abortion access, but as one justice wrote, “this case does not concern the right to an abortion. At least, not yet.”

When Donohue, Dougherty, and Wecht won their current terms via competitive elections in 2015, their races combined saw $29 million in spending (adjusted for inflation), which was record setting at the time. The 2023 Pennsylvania election saw nearly that much spending for a single seat.

If majorities on either court were to change as a result of the elections, recent experiences in other states suggest those changes could quickly result in dramatic shifts in the jurisprudence coming out of these courts. When Republicans claimed a majority on the North Carolina Supreme Court in 2022, the new majority quickly deployed rarely used procedural mechanisms to reverse recent decisions of the previous majority. In Iowa, the state supreme court ruled in 2018 that the state constitution protected the right to an abortion, only to overturn that right in 2022 with a new majority of justices in place. And in Wisconsin itself, a justice dissenting from the order striking down the state legislative maps accused the new majority of obscuring the fact that it was just overturning a recently decided case and asked whether the decision was “the first in a series of outcome-based legal decisions of the new court of four.”

With advocates increasingly bringing the most politically charged legal fights to state high courts, races for seats on these courts have been transformed. Wisconsin and Pennsylvania have already held elections in the post-Dobbs era of supercharged state judicial politics. Two years later, the trend of increasingly high-profile and nationalized judicial races shows no signs of slowing.

Douglas Keith is a founding editor of State Court Report and a senior counsel in the Judiciary Program at the Brennan Center for Justice.

Suggested Citation: Douglas Keith, High Stakes Supreme Court Elections in Wisconsin and Pennsylvania, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Feb. 28, 2025), https://statecourtreport.org/our-work/analysis-opinion/high-stakes-supreme-court-elections-wisconsin-and-pennsylvania