State Court Report: Post-Dobbs State Judicial Races Broke Spending Records

New analysis of 2022 elections shows state judicial elections saw almost double the amount of money than any other prior midterm cycle.

This week I’m turning over the newsletter to State Court Report founding editor Douglas Keith, who just published The Politics of Judicial Elections, a biennial Brennan Center analysis of spending and other trends in state supreme court elections.

—Alicia Bannon

State courts operate in a very different political environment than their federal counterparts. Most notably, in 38 states, supreme court justices must stand for election if they want to keep their seat on the bench.

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.

Texas Supreme Court Considers Challenge to Ban on Gender-Affirming Care for Transgender Youth

Yesterday, the Texas Supreme Court heard oral arguments in Texas v. Loe, a case challenging a state law banning certain gender-affirming medical treatments for transgender children. The Brennan Center’s Erin Geiger Smith previews the case, in which plaintiffs argue that the law discriminates based on sex and gender and violates parents’ fundamental right to make medical decisions for their children. READ MORE

New Tool to Track Abortion Rulings

The Center for Reproductive Rights released a resource to help the public understand and keep track of state supreme court rulings on abortion. The center’s Amy Myrick discusses the new digital tool along with recent trends in abortion litigation, in which state high courts “have struck down and upheld abortion bans based on a range of rights and rationales,” she writes. READ MORE

Making State Court Clerkships More Accessible

The National Center for State Courts recently created the Court Opportunity Recruitment for All (CORA) portal, a tool that simplifies access to state judicial clerkships and, in the long run, could increase diversity in state courts. CORA “streamlines the application process and aims to raise awareness about the value of state court experience for young lawyers, who often overlook opportunities within state judiciaries,” writes the Brennan Center’s Gabriella Sanchez. READ MORE

Single-Subject Rules Give Judges Enormous Power

Campbell University law professor Marcus Gadson and law student Amanda Olejarz analyze the power that state constitutional single-subject clauses offer judges. Looking to a recent Missouri Supreme Court case striking down a law criminalizing homelessness, they note that single-subject rules “can be used to prevent perverse policy outcomes.” But, they write, these rules can also “allow judges to thwart ballot initiatives that do command majority support.” READ MORE

The Major Questions Doctrine in Texas

Law professor Evan C. Zoldan examines the Texas Supreme Court’s nod toward the major questions doctrine in Abbott v. Harris County and suggests the doctrine may be ill-suited for the state. “The Texas Supreme Court did not reflect on some salient differences between federal institutions and Texas institutions that counsel against the state’s adoption of the major questions doctrine,” he argues. READ MORE

State Constitutional Challenges to School Segregation

Seventy years after Brown v. Board of Education, schools across the United States remain highly segregated. Rutgers law professor Robert F. Williams and State Court Report Managing Editor Kathrina Szymborski Wolfkot highlight recent litigation in Minnesota and New Jersey aimed at combating racial segregation through state constitutional challenges. “These cases will have a major impact on public education in their respective states,” they write, “and could serve as models for parents and students to tackle segregation in schools across the country.” READ MORE

What Else We’re Watching

• On February 23, the American Judicature Society will host a virtual presentation on Judicial Diversity: Why It Matters and How to Achieve It. You can register here.

Notable Cases

Allegheny Reproductive Health v. Pennsylvania Department of Human Services, Pennsylvania Supreme Court
Overturned dismissal of lawsuit challenging constitutionality of ban on Medicaid-funded abortion and announced that the ban must survive heightened scrutiny to remain in place. // NPR

Graham v. District Attorney for Hampden District, Massachusetts Supreme Judicial Court
Held that the district attorney’s office breached its duty under the state Due Process Clause to disclose evidence that could exculpate criminal defendants. // Massachusetts Lawyer’s Weekly

The Arlington Heights Police Pension Fund v. Pritzker, Illinois Supreme Court
Held that the ability to vote in elections for local pension board members and to have local board members control and invest pension funds are not constitutionally protected rights. // WTTW News

Lovell v. Raffensperger, Georgia Supreme Court
Upheld the dismissal of a lawsuit challenging the legality of the state's electronic voting machine system because the plaintiffs’ claims should have been aimed at the state and their respective counties rather than their election officials. // WRDW News

You can find briefs and opinions from notable state constitutional lawsuits in our State Case Database.

IN-PERSON EVENT (NEW YORK)

IN-PERSON EVENT — The Promise and Limits of State Constitutions
Thursday, February 8, 11 a.m. to 4 p.m.
Friday, February 9, 10 a.m. to 4 p.m.
New York City
RSVP for this free in-person event

State courts and constitutions are taking on new prominence as primary protectors of individual rights. The Brennan Center, State Court Report, and the NYU Law Review invite you to a symposium exploring the role and importance of state constitutions.

Join us for a live two-day event at NYU School of Law’s Vanderbilt Hall. The panels will feature judges, academics, and lawyers ready to dive into the nuances and importance of state constitutional law.

Produced by State Court Report, the Brennan Center, and the NYU Law Review

Click here for the list of speakers.