Post-Dobbs State Judicial Races Broke Spending Records

For many years, elections to decide who sits on state high courts were sleepy affairs — often uncontested and rarely attracting the kind of money and attention of other statewide elections. In the 2000s and 2010s, as businesses, partisans, and ideological interests awoke to how important these courts were for their bottom lines and their policy priorities, judicial races became increasingly expensive.

For 20 years, the Brennan Center has documented this spending in its Politics of Judicial Elections series. Our new analysis of the 2022 cycle found that judicial elections saw almost double the amount of money that any prior midterm cycle had ever seen — $101 million in total spent across 17 states. Kentucky, Montana, North Carolina, and Ohio broke state records for the most spending ever in a cycle of judicial elections.

And since the report analyzes the 2022 cycle, it does not even include the record-shattering 2023 Wisconsin Supreme Court election, which saw more than $50 million in spending.

Dobbs made clear that state courts would be central in deciding high-stakes legal fights at a time when the U.S. Supreme Court was withdrawing from protecting certain rights. The 2022 cycle was the first cycle to take place even partially after Dobbs, and the subsequent Wisconsin election shows that this new era is not going away anytime soon. 

These unique and shifting political dynamics inevitably shape state courts’ work and state constitutional law. In North Carolina, for example, the record-breaking 2022 election led to a new ideological majority on the court that quickly reversed several key several key decisions of its predecessors. In Ohio, a similar shift saw the court change course in high-stakes redistricting litigation.

In addition to generating more money, this new era of judicial politics is turning questions of state constitutional law into campaign fodder. In several states, candidates and the groups that run ads on their behalf told voters that supreme court elections would determine whether state law protects abortion rights. A new justice in Wisconsin was threatened with impeachment based on her campaign statements that the state’s legislative maps were “rigged,” rhetoric that may become more common as judicial campaigns increasingly resemble other elections. 

This all raises important questions about the development of constitutional law in state courts. How can state courts ensure that this new era of judicial politics does not undermine the public’s belief that courts are different than the more political branches? How should the principle of stare decisis be understood in a world where voters are aware of the stakes and vote to change a court’s majority? Will justices withstand the pressure to consider their next million-dollar election as they decide significant cases? 

However justices answer these questions, this increasingly political environment will be the backdrop to major state constitutional development for the foreseeable future.

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