The Stakes in Pennsylvania’s Supreme Court Election
The outcome could have big implications for abortion rights, elections, and more.
One of state courts’ most distinctive attributes is the use of judicial elections. While all federal judges are appointed to the bench (as are the judges in nearly every other country), 38 states rely at least in part on elections to choose justices for their highest courts. The contest for a seat on Wisconsin’s supreme court earlier this year drew national attention — and shattered spending records — with the election of Justice Janet Protasiewicz ending a 15-year conservative majority on the high court. In a few weeks, Pennsylvania will be holding its own state supreme court election, as Republican Carolyn Carluccio, a state trial court judge, faces off against Democrat Daniel McCaffery, an intermediate appellate judge.
Pennsylvania’s election is unlikely to be quite the barn burner that we saw in Wisconsin, but it’s already attracted millions of dollars. And, as Adam Sopko of the State Democracy Research Initiative explains in a new piece for State Court Report, its outcome is likely to have major implications for state law.
Pennsylvania is one of eight states that use partisan elections — that is, elections in which a candidate’s party affiliation appears on the ballot — to choose its judges. The court currently has one vacancy, and Democrats hold a 4–2 majority, so this November’s election won’t change the partisan balance on the court. (It could, however, matter quite a bit in 2025, when three Democratic justices are expected to stand for retention election.) But as Sopko notes, Pennsylvania is also a state where judicial ideology hasn’t always tracked with party labels.
The six justices currently sitting on the court have been evenly divided on a number of high stakes issues, including recent split decisions on vote by mail, police stops, and jury trial rights. Sopko also highlights disagreements among the justices about the test to apply in redistricting challenges and what the constitutional limits should be to logrolling by legislatures.
What would Carluccio or McCaffery do on the bench? Neither candidate has a judicial record that establishes a clear philosophy, but Sopko digs through their cases and public statements to piece together how they might approach their job as a state supreme court justice.
Carluccio has compared her approach to “Justice Scalia’s originalism” and emphasized that she will apply the law “as written.” Sopko argues this could lead her to “narrow protections in cases ranging from voting rights to abortion.” McCaffery has said that in a close case, he would lean toward “including votes, as opposed to disqualifying votes for technicalities, or perceived technicalities.” He compares his approach to constitutional interpretation to that of Chief Justice John Roberts. The comparison, Sopko argues, may “suggest a willingness to occasionally vote in high-profile cases with justices affiliated with the opposite party” and position McCaffery as a key swing vote.
In the coming years, Pennsylvania’s high court is likely to be on the front lines in election disputes, conflicts over separation of powers, and fights over reproductive rights. With the court so closely divided, as Sopko explains, November’s election “will likely push the court’s jurisprudence in new directions and influence state law for years to come.”
Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.
Suggested Citation: Alicia Bannon, The Stakes in Pennsylvania’s Supreme Court Election, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Oct. 23, 2023), https://statecourtreport.org/our-work/analysis-opinion/stakes-pennsylvanias-supreme-court-election.
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