Three U.S. Supreme Court Cases that Transformed State Judicial Elections

Last month, Planned Parenthood Votes and the National Democratic Redistricting Committee announced that they would join forces and dedicate $5 million to state supreme court elections this fall, targeting races in Arizona, Michigan, Montana, North Carolina, Ohio, and Texas. It’s a testament to the role that state courts play in areas like reproductive rights and redistricting. And it’s only a tiny fraction of what by all accounts will be a barrage of spending on all sides in state supreme court elections this fall.

You can’t understand state constitutional development without grappling with judicial elections, which are used in 38 states. In many parts of the country judicial elections have become major political battlegrounds, complete with dark money, special interests, and attack ads. At the same time, you can’t understand modern judicial elections without considering the role of the U.S. Supreme Court, including three rulings that have brought us to the current moment.

The most obvious, perhaps, is 2022’s Dobbs v. Jackson Women’s Health Organization. In overturning Roe v. Wade, the Court made state law, including state constitutions, the primary site for addressing the scope of abortion rights. In a new piece this week, the Center for Reproductive Rights’ Amy Myrick and Alex Wilson point out that as advocates look to pass ballot measures that would incorporate abortion rights into state constitutions, state courts are gatekeepers for what actually gets put on the ballot. They are also, of course, the primary decision-makers in interpreting and applying new constitutional provisions. “A post-Dobbs strategy that empowers voters must also build and protect state courts that will safeguard the democratic process as well as reproductive autonomy,” they argue. (State Court Report is tracking the progress of abortion-related ballot measures across the country. As many as 11 states could vote on abortion rights this fall.)

The Brennan Center has tracked state supreme court elections for more than two decades, and while politicized judicial races are nothing new, their scale since Dobbs is different in kind. In 2021–22, state supreme court elections attracted more than $100 million, nearly double the cost of any prior midterm (inflation adjusted). 

The next election cycle, Wisconsin saw a staggering $51 million spent in an election that brought a liberal majority to the court for the first time in 15 years. The fate of Wisconsin’s strict abortion ban, adopted in 1849, loomed large, with the winning candidate, Janet Protasiewicz, explicitly campaigning on abortion rights. (Litigation challenging the 1849 law is ongoing.) 

Pennsylvania set its own spending record later in 2023, with a $22 million state supreme court race that also turned on abortion rights. And last month brought a rare competitive election for a state supreme court seat in Georgia, as a former Democratic legislator took to the campaign trail to argue for a state constitutional right to abortion in an ultimately unsuccessful bid to unseat a sitting justice. 

But while Dobbs has generated an unprecedented level of interest in state supreme courts, two other U.S. Supreme Court cases created the legal framework that shaped today’s landscape. As recently as 2002, most states prohibited judicial candidates from sharing their views about disputed legal and political issues on the campaign trail. Statements by a candidate about their views on abortion rights could open them up to an ethics complaint.

That changed with Republican Party of Minnesota v. White, in which the Court ruled 5–4 that such restrictions violated the First Amendment by placing, in the words of Justice Scalia, “most subjects of interest to the voters off-limits.” The dissenting justices warned that opening up judicial campaigning was inconsistent with the role that judges are supposed to play in our democracy. “Elected judges, no less than appointed judges, occupy an office of trust that is fundamentally different from that occupied by policymaking officials,” argued Justice Stevens. Years later, Justice O’Connor publicly expressed regret for joining the White majority and blamed the ruling for politicizing judicial elections. 

Finally, Citizens United v. Federal Election Commission opened the door in 2010 to unlimited “independent expenditures,” or spending by individuals or groups undertaken separately from a candidate’s campaign. Citizens United upended how interest groups engage in judicial elections: rather than make direct contributions to candidates, which generally cannot exceed a particular amount, set on a state-by-state basis, they increasingly spend money via outside groups. The result has been a surge in dark money in state supreme court elections, coupled with the rise of pop-up groups that can sling mud without accountability — trends that have accelerated since Dobbs.

All told, it’s an uncomfortable place for judges, who are asked to play a counter-majoritarian role while also running for election. And the influx of dark money and broader politicization of judicial elections almost certainly undermines public confidence in the courts. Yet as long as state courts are enmeshed in many of the most contested issues of the day, it’s hard to see the political temperature going any direction but up.

Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.