Pennsylvania Supreme Court Election Could Shape Direction of State Law

UPDATE: Democrat Daniel McCaffery defeated Republican Carolyn Carluccio by approximately six percentage points in the November 7, 2023 election.

On November 7, Pennsylvanians will vote to fill a supreme court vacancy that could ultimately serve as the catalyst for significant changes to the levers of power in the state. The candidates are Democrat Daniel McCaffery and Republican Carolyn Carluccio.

In Pennsylvania, supreme court justices initially run in partisan elections for ten-year terms and thereafter stand for retention votes. The upcoming election will not change the court’s partisan balance, as Democrats currently have a 4–2 majority, though it could have consequences when three Democratic justices stand for retention in 2025. But more than its partisan implications, this election’s bigger story is that, regardless of who wins, the new justice will likely have a significant impact on issues ranging from separation of powers to bodily autonomy. Indeed, the court’s views on many salient issues are evenly divided — a single justice’s vote could be decisive as to how gerrymandering claims are analyzed or what protections the state constitution offers criminal defendants. 

In short, though the court’s partisan balance will not change, the direction of state law almost certainly will.

For much of the early 2000s, Republican justices occupied a majority of the seven-member court. But that changed in 2015, when a combination of scandals and mandatory retirements created three vacancies. Thanks in part to record-setting campaign contributions, Democrats swept those seats and created a 5–2 majority that the party has since maintained. In September 2022, then-Chief Justice Max Baer, a Democrat, passed away, creating the vacancy that McCaffery and Carluccio are seeking to fill.

In recent years, the court has issued several consequential decisions that have affected the balance of power in Harrisburg and Washington alike. For example, the court has upheld Pennsylvania’s vote-by-mail law, rejected repeated attempts by Republicans to gerrymander redistricting maps, construed the state constitution’s Education Clause to require education equity, and enhanced various constitutional protections for criminal defendants.

While Democrats will maintain partisan control of the court regardless of who wins next month’s election, the winner will nevertheless provide the decisive vote in several important cases. Because the court is currently evenly split on a range of issues, a single justice’s views will likely push the court’s jurisprudence in new directions and­ influence state law for years to come.

One notable area the new justice will influence is whether and when mail-in ballots can be thrown out for signature or dating errors under Act 77, the state’s vote-by-mail law. Last fall, the court split 3–3 on whether federal law invalidated the statute’s date and signature requirement, leaving it in place and reportedly disenfranchising thousands of voters. The issue is likely to come before the court again before the 2024 election. With a new justice on the bench, the court’s decision could meaningfully influence Pennsylvania’s elections and, since Pennsylvania is a swing state, affect national results, as well.

The court has also split recently in criminal cases. The justices divided over whether running away from gunshots in a high-crime area is a constitutionally permissible basis for law enforcement to stop and question you and whether the constitution allows for the elimination of juries when imposing enhanced sentences on certain criminal defendants. Here, too, the issues are likely to come before the court again.

Beyond discrete legal questions, there are strands of the court’s jurisprudence where a single vote could alter current doctrine and thus affect subsequent case outcomes. Perhaps the most salient example is the test the court applies in redistricting challenges. In its most recent case, the four-justice majority agreed on the factors that drive the analysis, but they differed as to their application. The new justice could provide a crucial vote that nudges the test in a new direction, and with it, alters the political trajectory of a critical battleground state. Similarly, in a case concerning constitutional limits on legislative gamesmanship, the court upheld allegedly logrolled legislation that eliminated the state’s cash assistance program for the indigent. However, the justices in dissent signaled an interest in crafting a stricter formulation of the rules, which a new justice could help shape into a majority in a future case. The new justice’s views on the limits of logrolling legislation could have wider implications that are not immediately obvious: Percolating in the legislature is a set of constitutional amendments passed in a single resolution by senate Republicans that, among other things, would constitutionalize an abortion ban. If enacted, a challenge to these bundled amendments would almost certainly come before the court, and potentially determine abortion access in Pennsylvania.

Each of the cases discussed here consisted of bipartisan majorities. And in several recent high-profile cases, the court has ruled in ways that seemingly defy party labels. For example, the prior Republican majority invalidated legislation that expanded oil-and-gas development and struck down a Republican-drawn legislative map. And the current majority-Democratic court has made it easier to sentence juvenile offenders as adults and made it harder for injured workers to seek compensation. Indeed, party affiliation has not necessarily served as the best predictor of how a justice might vote. To better understand the effect of a Justice Carluccio or McCaffery on the court, we might instead look at their decisions in prior cases and how they’ve described their approaches to various legal issues.

For example, as an appellate judge, McCaffery has relied on a variety of methods in statutory interpretation cases. In some, he’s said a statute’s “plain meaning” is dispositive, whereas in others, his analysis has turned on a its “stated purpose” or has been reversed for “pav[ing] over” language that contradicts his more functionalist reading. In the context of Act 77, the vote-by-mail law — arguably the most salient statutory issue likely to come before the court — it’s not entirely clear how McCaffery’s pluralistic approach would play out. However, he has said that in a close case, he would lean towards “including votes, as opposed to disqualifying votes for technicalities, or perceived technicalities.” 

As to constitutional interpretation, McCaffery has described his view as more dynamic and suggested his general approach is closest to that of Chief Justice John Roberts of the U.S. Supreme Court. As with Roberts, this may suggest a willingness to occasionally vote in high-profile cases with justices affiliated with the opposite party. If so, that would place McCaffery in a similar place as Pennsylvania’s current chief justice, Debra Todd, a Democrat who has voted with the Republican justices in salient cases, including the most recent redistricting challenge and a case that seemingly reduced limits on the General Assembly’s ability to logroll legislation. On this view, Todd and McCaffery could serve as swing votes in certain cases, forming a majority with the Republican justices.

Carluccio, in contrast, has suggested a commitment to textualism and applying the law “as written,” but as a trial court judge has had few opportunities to illustrate what that means in practice. In the context of Act 77, though, she has suggested opposition to mail-in voting. She has previously said the statute is “very bad for our commonwealth” and “faith in our system” and noted that she would “welcome” an Act 77 case to “come up before me again, let’s put it that way.”

Carluccio has said her approach to constitutional interpretation mirrors “Justice Scalia’s originalism,” which focuses on “original intent, and applying the law as written.” This is an approach Justice Sallie Mundy has followed in constitutional cases. For example, in a recent case concerning limits on the legislature’s ability to bundle unrelated legislation, Mundy’s concurring opinion suggested the constitution’s “original intent” necessitated fewer constraints. And in the court’s most recent redistricting case, she dissented and sketched her own version of the proper test for gerrymandering claims that was “solely” derived from the constitution’s text, which would exclude from consideration various factors like partisan fairness and protecting minority districts. Relying on a comparable originalist view of the constitution, Justice Carluccio might similarly narrow protections in cases ranging from voting rights to abortion. 

While the outcome of November’s election will not change the partisan control of the supreme court, it will nevertheless be consequential. If Carluccio prevails, it could foster opportunities for Democratic justices to serve as a swing vote and perhaps set Republicans up to retake the majority in 2025. A win by McCaffery could enhance the liberal justices’ voting power and further insulate the Democratic majority going into the 2025 election. Regardless of who wins, though, the new justice will likely assert significant influence over how the court approaches issues ranging from democracy to separation of powers. In November, voters have an opportunity to shape the court and, with it, the direction of Pennsylvania law for years to come.

Adam Sopko is a staff attorney with the State Democracy Research Initiative at the University of Wisconsin Law School.