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A justice for some? After Roe overturned, state Supreme Court races turn political

Political groups are backing judicial candidates who they believe will reshape state courts in their favor. But one former justice warns: “You sleep with dogs, you’re going to get fleas.”
Anti-abortion activists rally on the steps of the Kentucky State Capitol
Anti-abortion activists rally on the steps of the Kentucky State Capitol in Frankfort, Ky. on Oct. 1.Stefani Reynolds / AFP via Getty Images file

In the run-up to Election Day, what should be a nonpartisan race for judge on Kentucky’s highest court has become a high-stakes showdown injected with political rhetoric and imagery.

Joseph Fischer, a candidate in the 6th Supreme Court District, appears in a recent campaign ad telling voters he’s “committed to defending the rule of law, not radical activist politics,” as photos flash of his opponent, incumbent Justice Michelle Keller, as well as U.S. Supreme Court Justice Elena Kagan and retired Justice Stephen Breyer.

Fischer, a longtime GOP state lawmaker, is branding himself “the conservative Republican” in the race and boasts an elephant in his campaign signs. And he's counting on the issue of abortion to distinguish himself from Keller, who is fighting to preserve the seat she was first appointed to in 2013 by then-Gov. Steve Beshear, a Democrat. (Keller told NBC News she is a registered independent.)

Fischer is also the author of Kentucky’s 2019 “trigger” law, which went into effect when the U.S. Supreme Court overturned Roe v. Wade in June and makes most abortions illegal in the state.

Much like the nation's high court, where the justices’ ideologies may color their interpretation of the law, state and local judges are gaining renewed attention for the power they wield, whether it’s striking down Covid-19 mask mandates or blocking abortion bans. This year, with 84 seats up for election in state supreme court races nationwide – the highest number in recent years, according to election tracking organization Ballotpedia – these down-ballot races are taking on a heightened significance and scrutiny.

In a handful of states, such as Illinois, North Carolina and Ohio, the ideological makeup of their supreme courts could change with this election, while in other states, like Montana, record campaign spending and further politicization are blurring the lines between the legislative and judiciary branches even further.

And even though incumbent justices in state supreme court races typically coast to victory — they won re-election 93% of the time from 2008 to 2021, according to Ballotpedia — observers say events over the past year may give some challengers a boost.

Four out of seven of Kentucky’s state Supreme Court seats are up on Nov. 8, with three of those races contested. In the 6th Supreme Court District, a reliably Republican-leaning stretch of northern counties, the race between Fischer and Keller will be a test as to whether voters want a newcomer who is unabashedly political or prefer the more inconspicuous incumbent, said Laura Moyer, an associate professor of political science at the University of Louisville.

“In Kentucky, there are so many judicial races that you’re voting on a lot of names. At a certain point it all runs together,” Moyer said. “Certainly, Fischer is savvy in playing up his position, but it will be interesting to see in a nonpartisan race that people may have not paid attention to before if voters want to be represented by someone whose values they can relate to.”

Reshaping the courts

Conservative operatives in Kentucky have pointed to the state Supreme Court as an institution they believe must be reshaped because it skews liberal.

Outside donors and groups are also paying close attention: The Republican State Leadership Committee, a D.C.-based organization that seeks to elect Republicans at the state level, announced last week it was pouring $375,000 in ad buys for a pro-Fischer commercial. The ad opens by claiming, “Joe Biden and Nancy Pelosi’s socialist agenda threatens Kentucky families and our way of life.”

Meanwhile, a new political action committee called Fair Courts America−Kentucky, which falls under the Illinois-based conservative group Restoration of America, said this month it would spend up to $1.6 million in candidates it supports in three judicial races in Kentucky, including in the 6th Supreme Court District, The Courier Journal reported.

These court-centered initiatives come as states see a wave of efforts to either uphold abortion rights or enact stricter laws in line with the overturning of Roe.

On the ballot this November in Kentucky, voters will decide whether the state Constitution should be amended to specify that it does not protect the right to an abortion, keeping the state’s ban in place. But if the amendment loses, a legal challenge from the American Civil Liberties Union and Planned Parenthood attempting to overturn the ban would move forward before the state Supreme Court.

Fischer, who crafted the ballot amendment as a state legislator, did not respond to requests for comment surrounding his campaign and the election.

Keller said she understands the weight that her role as a state Supreme Court justice holds and why there’s a sudden interest in her re-election bid, but she believes it would be misguided for herself or any judicial candidate to commit themselves to one side on an issue — at the risk of appearing biased or potentially having to recuse themselves.

“Lady Justice wears a blindfold for a reason,” Keller said.

Stifling free speech?

Judges in each state are generally bound to uphold moral and ethical codes of conduct, part of which include refraining from an appearance of political bias from the bench — even if elected in a partisan race.

In Illinois, where judicial elections are partisan and Democrats could lose their slim majority on the state Supreme Court this November, the tone has become so troubling that the Illinois Judges Association, which represents 1,250 sitting and retired judges, issued a declaration this month reminding members on the bench to remain neutral and not succumb to a “political agenda.”

Fischer is the subject of two complaints filed to Kentucky’s Judicial Conduct Commission alleging his overt political party affiliation undermines the judiciary and that he has made “pledges, promises or commitments” in connection with cases likely to come before the court, “specifically the issue of abortion.” A commission meeting on the matter is scheduled for next week.

Fischer and his campaign filed a federal lawsuit this month against the commission seeking a temporary restraining order that would protect his First Amendment rights from “otherwise being chilled from Defendants’ threat of enforcement against him.”

Fischer in his suit denied that he has ever promised to rule a particular way, and wrote on social media that holding a moral belief on an issue shouldn’t discount a judge’s ability to “put aside their personal opinions about political issues and decide each individual case based on the law as written.”

The chair of the Judicial Conduct Commission did not immediately respond to a request for comment. Fischer’s attorney, Chris Wiest, said in an email that he believes the suit will prevail because of the precedent set in a 2002 U.S. Supreme Court case brought by the Republican Party of Minnesota pertaining to how judicial candidates’ speech shouldn’t be restricted.

“If we are going to have judicial elections, instead of appointments, voters have a right to know what the candidates stand for on issues, particularly in the Appeals and Supreme Courts, which set policy through their rulings and interpret state constitutions,” Weist said.

But not everyone is convinced that a judicial candidate who takes a side on an issue can then be trusted to make an independent ruling once elected.

Bill Cunningham, who served on the Kentucky Supreme Court from 2007 to 2019 and is backing Keller in the 6th District race, said that can be especially true for newcomers who come from a partisan environment or don’t have a judicial track record that voters can parse.

“You sleep with dogs, you’re going to get fleas,” Cunningham said.

A ‘new frontier’

In Montana, Republicans have accused the seven-member state Supreme Court of holding a “liberal bias,” particularly while Democratic governors filled court vacancies in recent years.

But in 2021, the Republican-controlled Legislature gave Gov. Greg Gianforte, a Republican, the power to directly nominate judges to open seats, eliminating a commission that had vetted potential applicants.

Now, the state’s top Republicans are setting their sights on judicial elections, throwing their support this November behind James Brown, an attorney and the president of Montana’s utility oversight board, who is running against an incumbent justice on the state Supreme Court, Ingrid Gustafson. Montana’s Supreme Court elections are nonpartisan and statewide.

Brown said at a candidate forum last month that it was Gianforte who called and encouraged him to run for the state’s highest court, believing he could be a foil to justices “legislating from the bench.”

Such maneuvering from a sitting governor would be a “new frontier” in nonpartisan judicial elections, said Jeremy Johnson, an associate professor of political science at Carroll College in Helena.

But there’s even more at stake in November, he added.

Montana voters must also decide on an abortion-related ballot measure. While the procedure remains protected under the state Constitution, Republican legislators are seeking to criminalize health care providers who fail to take “all medically appropriate and reasonable actions to preserve the life” of an infant born alive, including during a failed abortion.

The abortion issue has seeped into the race for state Supreme Court, with anti-abortion groups declaring Brown as their preferred candidate and abortion rights advocates fundraising on behalf of Gustafson. Neither candidate has been blatant about how they would rule on abortion, and both told the Montana Free Press that their aim is to remain impartial in the cases before them.

Elected officeholders are able to endorse judicial candidates, but the Montana Code of Judicial Conduct prohibits candidates from seeking or using those endorsements in their campaigns.

So far, Brown and Gustafson have each raised hundreds of thousands of dollars, campaign finance records show, and the Montana Republican Party’s committee has spent more on ads for Brown than on all of the other GOP legislative candidates this election. Gustafson is backed by some Democrats and Republicans.

No matter which candidate wins, the ideological makeup of Montana’s Supreme Court won’t immediately shift. Still, Johnson said, this year’s election is laying the groundwork for a playbook for future races.

“This injection of politics is a relatively new thing,” he added, “and I think it’s here to stay, God help us all.”