Left-leaning lawyers confront a daunting future in America’s new Gilded Age. Federal courts are firmly under conservative control, allowing the right to entrench existing racial, gender, and economic hierarchies. No left-wing judicial recruiting system exists that can match the reach of the right’s Federalist Society. And the left lacks a succinct progressive legal philosophy that can challenge the dominance of the conservatives’ textualism and originalism. 

America faced these problems more than a century ago, too, when legal power was in the hands of reactionary federal courts that proudly championed plutocracy, segregation, and gender discrimination. During this period, known as the Lochner Era after one infamous decision, the Supreme Court invalidated child-labor bans, minimum wage laws, sixty-hour work week caps, and union protections.

Faced with this forbidding reality, legal reformers turned to state courts to fight back. Many of the era’s most prominent reformers—the white, male, upper-middle-class ones—largely ignored segregation and gender discrimination. But by working through state courts, particularly in Washington state, some of these reformers articulated a popular, widely-understood legal philosophy that rejected the dominant conservative philosophy of the day. Reformers then used this philosophy—legal realism—to champion workers’ rights, challenge the pro-corporate bias of federal courts, create a strong progressive legal bench, and lay the legal foundation for the New Deal. 

Today, there are hints that some progressives are turning toward state courts, particularly as the end of Roe v. Wade elevates state constitutions and courts to the forefront of the struggle for abortion access. But even at the state court level, left-leaning lawyers have made few attempts to lay the foundation for a popular alternative to conservative legal philosophy. 

During the first Gilded Age, legal reformers developed their big idea to counter the technical, abstract approach used by their conservative contemporaries, the formalists. The two sides had different ideas about the kinds of information judges should consider: Formalists, much like today’s originalists and textualists, claimed that judges should base their decisions on neutral legal principles and on America’s history—or at least a fictional vision of that history. And much like today’s originalists, the Lochner Court repeatedly found that ostensibly neutral principles and traditions—particularly the freedom to contract—prohibited a wide variety of popular legislation intended to protect workers.

Legal realists pushed back. They were led by Oliver Wendell Holmes and Benjamin Cardozo, both of whom sat on state courts before eventually joining the U.S. Supreme Court. As chief justices of the Massachusetts and New York high courts, respectively, Holmes and Cardozo argued that the law was not a set of timeless, neutral principles, but a product of economic, social, and political realities. Joined by like-minded realists, they made the case that American judges needed to adjust to new problems created by staggering change: railroads, urbanization, mass production, mass media, and so on. They wanted  courts to permit elected legislators to use broad police powers to mitigate crises created by rapid economic change, from grisly workplace accidents to violent labor conflicts.

Cardozo, in particular, was that rare combination of state court judge and enthusiastic ideological evangelist. While serving on New York’s highest appellate court, he wrote an influential book, The Nature of the Judicial Process, in which he drew on Holmes’s opinions to argue that judges did not—and should not—decide cases by consulting “pre-established truths of universal and inflexible validity.” Doing so, he argued, would cause courts to make serious mistakes “not from misunderstanding of the law, but from misunderstanding of the facts.” 

As an example of these mistakes, Cardozo pointed to a formalist opinion—People v. Williams—issued by New York’s highest court while Cardozo was still serving as a state appeals court judge. In that case, the court had invalidated a statute banning night work by women. According to Cardozo, the court’s mistake was ignoring the obvious social realities that made the law necessary: Judges, he argued, had to decide cases by testing “working hypotheses” and generalizing from hard-won experience. Cardozo later put his philosophy into practice, reversing People v. Williams on the grounds that “fuller knowledge of the investigations of social workers” had illustrated the need to protect women in the workplace. 

Cardozo and other East Coast legal realists enjoyed a few victories, but reformers were most successful in Washington state. On its Supreme Court, a rotating cast of elected justices, many of whom had immigrated from more conservative eastern jurisdictions or more cautiously progressive midwestern ones, went on a reform spree. Between 1900 and 1937, the court, which President Theodore Roosevelt once described as the “most progressive court in the United States,” upheld a broad spectrum of state laws that were disfavored under the federal Supreme Court’s Lochner-esque precedents. These included laws reducing hours for women workers, creating an eight-hour day for public works employees, implementing a worker’s compensation program, creating a state commission to regulate railroads, and establishing minimum wages for public-sector employees, women, and children. 

The court’s reformist streak began with court packing. In 1901, the legislature expanded the number of justices from five to seven for a two-year period, allowing Washington’s populist governor to nominate a pair of reform-minded judges who formed the backbone of an energetic progressive majority. The next year, in Green v. Western American Company, the court recognized that a miner maimed by his employer needed compensation, not empty platitudes about precedent. And in State v. Buchanan, it unanimously upheld a law limiting women’s workdays to 10 hours. 

In Buchanan, Justice Ralph Dunbar explicitly rejected formalist legal principles like the absolute freedom to contract. Instead, he argued that courts had the “duty” in light of society’s “changing conditions” to uphold laws that protected the public from powerful corporations. The logic behind Buchanan proved so powerful that even the conservative U.S. Supreme Court, citing Buchanan, unanimously upheld a similar Oregon law seven years later. 

The Buchanan decision and others building on it were so popular that Washington state reformers were able to outlast backlashes from both local conservatives and the federal judiciary. A newly-elected conservative governor’s 1905 attempt to re-pack the court with two pro-corporate judges failed. Conservative federal courts also failed to rein in Washington’s reformers. In a characteristic display of realist stubbornness, state Supreme Court Justice “War Horse Bill” White, responding to a federal judge’s criticism of a 1905 pro-union ruling, admitted that the ruling was probably incorrect under formalist precedents before declaring that Washington state would “stay wrong.” 

Federal courts found themselves surprisingly powerless to respond: Limited caseloads ensured that that federal judges could only review a tiny fraction of relevant cases, enabling reformers to overcome the occasional reversal. Even a 1916 U.S. Supreme Court decision reversing a Washington Supreme Court opinion outlawing predatory employment agencies did little to deter Washington state reformers, who ultimately had the last laugh: The Lochner Era ended in 1937 when the U.S. Supreme Court upheld a minimum wage law adopted by Washington’s state legislature. Cardozo, the evangelist of legal realism, was in the majority. 

Today, the Washington Supreme Court is again among the more progressive state high courts, buoyed by a far more diverse set of judicial appointments than is common even in blue states. In a pair of landmark rulings in 2020, it issued new protections from extreme sentences and struck down state statutes criminalizing drug possession. (Democratic lawmakers partly walked back the second ruling.) 

However, the court has yet to articulate an overarching legal philosophy underpinning these rulings, even though its opinions continually prioritize social, economic, and political realities over abstract legal principles. The justices also often ground their opinions in Washington’s own constitution. This shields these rulings from hostile federal judges; it also sidesteps criticism of federal jurisprudence and inhibits the development of a clear alternative philosophy.

Such caution is understandable. Washington state’s justices may worry that Cardozo-style evangelism would further politicize the legal system and that, as they did in the early 20th century, conservative federal judges may retaliate against any nascent left-wing legal reform movement. Already, the U.S. Supreme Court has agreed to hear a case next term that will test the independent state legislature doctrine, which would kneecap the authority of state courts over key matters of election law. 

Washington’s Lochner Era experience may still provide today’s reformers with a way forward, one in which state courts can expose the public to new legal philosophies that allow judges to take the world as it is. In an era when the U.S. Supreme Court’s “correct” jurisprudence denies basic rights to millions of people, War Horse Bill’s immortal advice for state courts remains largely unheard: “Stay wrong.” 

The post “Stay Wrong”: When State Supreme Courts Fought Back appeared first on Bolts.

Just days before the U.S. Supreme Court overturned Roe vs. Wade, another high court tossed aside a separate precedent that protected abortion rights. The new conservative majority on the Iowa Supreme Court ruled on June 17 that Iowa’s state constitution does not guarantee a right to access abortions, striking down a 2018 ruling that had held the opposite.

This week, though, a state judge in Florida temporarily blocked new abortion restrictions on the basis that they violate his state’s constitution. Lawsuits are now asking state judges in Idaho, Oklahoma, and Utah to affirm the presence of similar rights in their own constitutions.

As states rush to respond to the U.S. Supreme Court’s ruling, state constitutions—and the judges who have the power to interpret them—have emerged as critical battlegrounds. 

The rights and liberties protected by the federal Constitution only set a floor, not a ceiling, for the rights people enjoy at the state level. States cannot provide less protection than the federal constitution, but they can provide more. Every state constitution contains a bill of rights and other provisions that are semantically similar to the federal Constitution’s, and judges often interpret these state constitutional provisions more expansively. With federal lawsuits now effectively blocked on abortion, as on other issues, many of these state courts now offer a more promising playing field for progressive litigators.

In Kansas, for instance, abortion access is protected as of now by a 2019 ruling by the state supreme court that the state constitution provides a right to abortion. Many other state courts across the country have similarly established that their state constitutions recognize abortion rights. 

These rulings rely on varying provisions that are embedded in many state constitutions; most commonly, equal protection clauses, due process clauses, implied or explicit rights to privacy, and gender-equality provisions. (No state constitution has a provision that nominally enshrines a right to abortion, though there are active efforts to change that.) The presence of such clauses in a state constitution does not guarantee that courts apply it to abortion. Eleven states have clauses in their constitutions that mention privacy, for instance, but only some of their high courts have held that the provision protects abortion rights. Where they have, courts frequently rely on state-specific histories and the contexts of their adoption.

Even where courts have held that the state constitution protects abortion rights, there is not always robust access to abortion. In Kansas, the state supreme court’s 2019 holding coexists with very onerous restrictions. Mississippi’s court affirmed severe restrictions even while it affirmed a right to abortion in 1998, and its precedent has not been tested in decades, though state advocates hope it can now come into play. 

Still, as long as they’re standing, such interpretations are a shield against all-out bans. And they survive the U.S. Supreme Court’s Dobbs decision to overrule Roe. 

Whether they multiply or atrophy now depends on battles that will be distinct to each state.

To enable a more informed picture of how state constitutions impact abortion rights, Bolts is publishing a state-by-state analysis of how state courts have interpreted their constitutions. The analysis also covers U.S. territories and the District of Columbia.

Many courts’ balance of power is precarious, and changes in their composition can massively upheave how a court interprets these provisions. The rapid shift in the Iowa supreme court’s jurisprudence followed changes to the state’s judicial nominating process, which gave Republican Governor Kim Reynolds more power over nominees and brought more conservative justices into office. Florida may be undergoing a similar shift. Its supreme court has interpreted the state constitution’s explicit right to privacy as protecting abortion rights since the late 1980s, but Republican Governor Ron DeSantis has reshaped the court’s liberal majority into a conservative supermajority—with potentially dire consequences for abortion rights in the state.

Inversely, Democrats flipped the Michigan supreme court in the 2020 elections; this now looms large over the fate of abortion rights. The court is considering whether to strike down the state’s pre-Roe abortion bans, and that lawsuit would face tougher odds if Republican justices held a majority of the seats.

This landscape is now in flux. Many courts are facing rapid decisions they’ve avoided so far, and the midterm elections and other appointments in upcoming years may reshuffle who has authority over state constitutions.

Bolts’s guide to 2022 state supreme court elections, published in May, shows all supreme court seats that are up this year across the nation, and how they could affect their state’s politics. Michigan’s high court could flip back to the GOP, as might Illinois and North Carolina’s, with major efforts for abortion. Conservatives also hope to gain in Montana, where abortion rights hinge on the state supreme court. Democrats hope to flip Ohio’s.

Where they can, pro-choice advocates are pursuing other avenues that would not rely on the vagaries of state supreme courts. This includes pressuring legislatures to strengthen state laws to championing constitutional amendments that explicitly codify the right to an abortion so as to not rely on judges’ interpretations of language like equal protections or due process clauses.

California and Vermont may become the first states to amend their constitutions to explicitly codify abortion rights this year; both states are voting on constitutional amendments in November. There could be still other amendments ratified this year protecting abortion rights, though one major push to join this trend has fallen short so far in New York.

Meanwhile, conservatives have sought to nullify or forestall rulings protecting abortion rights by amending state constitutions. In Tennessee and West Virginia, Republicans responded to decades-old rulings that recognized abortion rights by proposing constitutional amendments overturning those rulings; voters narrowly approved those proposals in both states. Similar efforts have failed elsewhere, however. This year, voters will decide amendments that say that the state constitution does not protect abortion rights in Kansas in August and Kentucky in November; the Kansas measure, if approved, would overturn the state supreme court’s 2019 ruling.

In each state, the stakes are muddled by the complicated mass of precedents, provisions, and rulings that make up its legal status-quo and govern whether the state constitution currently protects access to abortion—and if not, whether it likely could. We hope that the analysis below brings additional clarity.

For additional reading, see these resources compiled by the Center for Reproductive Rights and the Guttmacher Institute, which will be invaluable to readers who want to learn more about these state court decisions.

Alabama

Does a still-binding ruling hold that the constitution contains a right to abortion? No

Context: Alabama courts long established that the state constitution does not guarantee a right to abortion. In 2018, voters reinforced this by adding Section 36.06 to Article I of the state constitution, which recognized the rights of an unborn fetus and explicitly established that the constitution does not guarantee a right to an abortion.

Alaska

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context: Since the 1990s, Alaska courts have interpreted the state constitutional right to privacy in Article I, Section 22, to include abortion rights. This precedent was established in 1997 with Valley Hospital Association v. Mat-Su Coalition for Choice and reinforced in 2019 with  State v. Planned Parenthood of the Great Northwest. 

Alaskans will vote in November on whether to hold a constitutional convention, and abortion has become a clear dividing line because reversing the 1997 ruling with a constitutional amendment would require a constitutional convention.

American Samoa

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The High Court of American Samoa has not ruled on whether the territorial constitution recognizes a right to abortion.

Arizona

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Arizona Constitution does contain an explicit right to privacy in Article II, Section 8, but the Arizona Court of Appeals declined to rule on whether abortion rights are protected in the constitution in a 2011 case. 
However, the Arizona Supreme Court held in 2002 that the state was required to provide funding for abortion services for low-income residents in some circumstances.

Arkansas

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Arkansas Constitution was amended in 1986 to add Amendment Article 68, which prohibits the use of public funds for abortions and establishes a “public policy” against abortion. Public policies have generally been held by state supreme courts to not be binding, but here could result in a state court holding that there is no right to abortion in the state constitution.

Arkansas

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Arkansas Constitution was amended in 1986 to add Amendment Article 68, which prohibits the use of public funds for abortions and establishes a “public policy” against abortion. Public policies have generally been held by state supreme courts to not be binding, but here could result in a state court holding that there is no right to abortion in the state constitution.

California

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context The California Supreme Court has consistently held since the early 1980s that the implied right to privacy in Article I, Section 1, of the constitution encompasses abortion rights. In November 2022, Californians will vote on a constitutional amendment establishing an explicit right to abortion.

Colorado

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Colorado Supreme Court has issued a set of rulings since 1990 that have expressed some friendliness toward abortion rights, but these ruling have not established them as state constitutional rights. 

Colorado voters have repeatedly rejected anti-abortion constitutional amendments, including so-called personhoodamendments, though they did amend the state constitution in 1984 to add Section 50 to Article V, which bans the public funding of abortions, and subsequently rejected several amendments to remove the prohibition.

Connecticut

Does a still-binding ruling hold that the constitution contains a right to abortion? No, but it’s complicated.

Context: In 1986, a superior court in Connecticut (the state’s equivalent of a trial court) recognized abortion rights under the state constitution on the basis of a right to privacy implied by Article I. But the Connecticut Supreme Court has declined to do so (most recently in 2010), and superior court rulings in Connecticut do not constitute binding precedent.

Delaware

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Delaware Supreme Court has not ruled on whether the state constitution contains any protections of abortion rights.

Florida

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context: Since the late 1980s, the Florida Supreme Court has repeatedly interpreted the right to privacy that is contained in Article I, Section 23, of the constitution as including abortion rights. The court has routinely struck down state legislation that has infringed on the right. But with the new conservative majority on the Florida Supreme Court, these holdings are vulnerable. A trial court judge struck down the state’s new 15-week abortion ban this week in a case that is expected to work its way through the state system.

Georgia

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Georgia Constitution contains an implied right of privacy in Article I, Section 1, Paragraph 1, but the Georgia Supreme Court declined to say if abortion rights are protected under the state constitution in the 2017 case Lathrop v. Deal.

Guam

Guam does not have a constitution; it operates under the Organic Act of Guam, which can be modified by the U.S. Congress. Guam has no legal protections for an abortion.

Hawaii

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Hawai’i Constitution contains an explicit right to privacy in Article I, Section 6, but the Hawai’i Supreme Court has not interpreted that provision to include abortion rights. In a nonbinding opinion from 1994, the state Attorney General has suggested that the right to privacy does include abortion rights.

Idaho

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Idaho Constitution contains an implied right to privacy in Article I, Section 1, but the Idaho Supreme Court has not interpreted that provision to include abortion rights. Recently, however, a lawsuit was filed against Idaho’s “trigger law” that asks state courts to recognize such a right.

Illinois

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes, but it’s complicated.

Context The Illinois Supreme Court interpreted the equal protection and due process clauses in the state constitution’s Article I, Section 2 (though not the explicit right to privacy in Article I, Section 6) as protecting abortion rights in its 2013 decision in Hope Clinic for Women v. Flores. However, its decision in Hope Clinic held that the state constitution contained the same level of protections as the federal constitution. Following the U.S. Supreme Court’s decision in Dobbs, the status of abortion protections under the Illinois Constitution is unclear.

Moreover, the court’s majority could flip to the GOP this fall, when the state holds two supreme court elections; “an Illinois Supreme Court dominated by Republicans could potentially have a vast impact on abortion laws in Illinois,” The Chicago Sun Times reports.

Indiana

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The Indiana Supreme Court declined to rule on whether the state constitution contains any protection of abortion rights in a 2005 case. Ten years later, in a 2016 case, the Indiana Court of Appeals noted that this is an “unresolved issue.”

Iowa

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The Iowa Supreme Court, in a 2018 ruling, held that the due process clause in Article I, Section 9, provided protections for abortions.  

In June 2022, however, the new conservative majority on the supreme court reversed that ruling, holding that abortion was not protected under the state constitution. The new case, Planned Parenthood of the Heartland v. Reynolds, was testing the constitutionality of a 24-hour waiting period for abortions.

Kansas

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context In a 2019 case, the Kansas Supreme Court held that the equal protection clause in Section 1 of the state constitution’s Bill of Rights included abortion protections. 

A constitutional amendment that would overrule this decision and enable new restrictions is on the ballot in August 2022.

Kentucky

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The Kentucky Supreme Court has interpreted the state constitution’s privacy rights broadly in the past, for instance striking down a statute against sodomy in the 1990s. But it has not interpreted that provision to include protections for abortion rights. In November 2022, voters will decide a proposed constitutional amendment that would establish that there is no right to an abortion in the state constitution.

Louisiana

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: In 2020, voters added Section 20.1 to Article I of the constitution. It provides that the state constitution does not protect abortion rights.

Maine

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Maine Constitution contains robust protections of rights to liberty and safety, equal protection, and due process, but the Maine Supreme Judicial Court has not interpreted those provisions to protect abortion.

Maryland

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Maryland Court of Appeals (equivalent to the state supreme court) has not interpreted the state constitution to include abortion rights, although a 1989 opinion from the state Attorney General suggests that Article 24 of the Declaration of Rights could include abortion protections.

Massachusetts

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context: Since the early 1980s, the Massachusetts Supreme Judicial Court has interpreted the state constitution’s due process clause in Article 10 of the Declaration of Rights to protect abortion rights in several cases. 

Voters in 1986 rejected a constitutional amendment that would have granted the legislature the power to regulate or prohibit abortions.

Michigan

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Michigan Supreme Court has declined to rule on whether the state constitution protects abortion rights. 

In a 1992 case challenging abortion restrictions, it held that the state’s equal protection clause had identical protections as the U.S. Constitution’s equal protection clause, which suggested that there may be a parallel right to abortion under the state constitution, but the court added it was “unnecessary to decide” that question. Governor Gretchen Whitmer has challenged Michigan’s 1931 ban on abortions, asking the Michigan Supreme Court to recognize that the state constitution guarantees a right to abortion.

Moreover, abortion access advocates are currently collecting signatures to place constitutional amendment on the ballot in November that would enshrine abortion rights.

Minnesota

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context: In its 1995 ruling in Women of the State v. Gomez, the Minnesota Supreme Court interpreted the state constitution’s implied right of privacy (in Article I, Sections 2, 7, and 10) to include a right to abortion.

Mississippi

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes, but it’s complicated.

Context: The Mississippi Supreme Court held in 1998 that the state constitution’s explicit right to privacy in Article III, Section 32, included a right to abortion. (In the case, Pro-Choice Mississippi v. Fordice, the court otherwise affirmed new restrictions on accessing abortions.) Moreover, in 2011, voters rejected a constitutional amendment that would have defined life as beginning at conception. 

Mississippi politicians passed a “trigger” law in 2017 meant to ban abortions in the state if the federal Supreme Court overturned Roe, but reproductive rights advocates filed a lawsuit after the Dobbs opinion, pointing to the 1998 ruling. That precedent is now vulnerable to being overturned by the conservative majority on the court, which would greenlight the ban. In addition, the court has not struck down abortion restrictions on the basis of the ruling, which has rarely been used. Still, the situation is introducing rare complications for a Deep South state. “As Mississippi’s trigger law has been discussed in the state and nationwide, no one has taken into account the fact that the state Supreme Court has said the Mississippi Constitution protects the right to an abortion,” Mississippi Today wrote this week. “Apparently, Mississippi legislators also had forgotten about the 1998 state Supreme Court decision when they passed the trigger law in 2007.”

Missouri

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Missouri Supreme Court has not ruled on whether the state constitution recognizes a right to abortion.

Montana

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context: The Montana Supreme Court held in a 1999 case, Armstrong v. State, that the state constitution’s explicit right to privacy in Article II, Section 10, included a right to abortion. Recent efforts by conservatives in Montana to elect a conservative majority to the court, however, could call that holding into question.

Nebraska

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Nebraska Supreme Court has not ruled on whether the state constitution recognizes a right to abortion.

Nevada

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Nevada Supreme Court has not ruled on whether the state constitution recognizes a right to abortion.

New Hampshire

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The New Hampshire Supreme Court has not ruled on whether the state constitution recognizes a right to abortion. The state ratified a state constitutional right to privacy in 2018, but this provision has not been tested in court as applied to abortion.

New Jersey

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes.

Context The New Jersey Supreme Court held in a 1979 ruling that the state constitution’s implied right to privacy in Article I, Paragraph 1, includes protection of abortion rights, which it applied in 2000 to strike down abortion restrictions.

New Mexico

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The New Mexico Supreme Court has declined to rule on whether the state constitution recognizes a right to abortion. But in a 1998 case, it ruled that the state’s equal rights amendment requires the state, when it provides healthcare to low-income residents, to also provide abortion services.

New York

Does a still-binding ruling hold that the constitution contains a right to abortion? Unclear.

Context In the 1994 case Hope v. Perales, the New York Court of Appeals (the state’s highest court) struck down a law restricting abortion but it did so by issuing an unexpectedly narrow ruling that sidestepped the question of the extent to which the state constitution guarantees a right to abortion. The scope of the ruling remains unclear. Recent efforts by state Democrats to amend the constitution to codify abortion access as a right have not been successful.

North Carolina

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The North Carolina Supreme Court has not ruled on whether the state constitution recognizes a right to abortion; a 1997 ruling rejected claims that the state’s denial of public funding for medically necessary abortions violated the state constitution.

The narrow Democratic majority on the current court could prove more sympathetic to abortion rights in prospective future cases, but the partisan majority is on the line in two state supreme court elections this November.

North Dakota

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The North Dakota Supreme Court ruled in 2014 that the state constitution did not recognize a right to abortion, in the case MKB Management Corporation v. Burdick. Later in 2014, state voters rejected a constitutional amendment that would have defined life as beginning at conception.

Northern Mariana Islands

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The constitution of the Northern Mariana Islands explicitly outlaws abortion, and the territorial supreme court has not further elaborated on the legality of abortion. A 1995 nonbinding opinion from the territorial attorney general suggested that abortion rights may nonetheless be protected by the covenant between the United States and the territory, as well as the territorial constitution. However, this informal opinion seems unlikely to alter the legal landscape.

Ohio

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The Ohio Supreme Court has not ruled on whether the state constitution recognizes a right to an abortion, but one of the state appellate courts rejected that argument in a 1993 case.

Organizations that support abortion access filed a lawsuit after the Dobbs decision, asking state courts to protect such a right under the Ohio constitution. The state supreme court has a narrow Republican majority that is on the line in the 2022 midterms.

Oklahoma

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Oklahoma Supreme Court has not ruled on whether the state constitution recognizes a right to abortion. A case presently before the court is seeking to recognize that right.

Oregon

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Oregon Supreme Court has not ruled on whether the state constitution recognizes a right to an abortion, though the Court of Appeals rejected that argument in a 1983 ruling.

The 1983 ruling by the Court of Appeals did find that, if the state is providing funding for medically necessary services for pregnancy and childbirth, then the state constitution requires that it provide funding for medically necessary abortions; but it explicitly said this ruling was not about establishing a constitutional right to abortion. In any case, the Oregon Supreme Court did not validate its lower court’s analysis in its own 1984 ruling.

Oregon voters have repeatedly rejected constitutional amendments that would have banned or severely limited abortions.

Pennsylvania

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context The Pennsylvania Supreme Court held in the 1985 case Fischer v. Department of Public Welfare that the state constitution does not protect a right to abortion. (Given the liberal makeup of the current court, it is possible that its decision in Fischer could be revisited.)

Puerto Rico

Does a still-binding ruling hold that the constitution contain a right to abortion? Yes.

Context: The Puerto Rico Supreme Court has held since 1980 that the right to privacy in Article II, Section 8, of the constitution of Puerto Rico, which has historically had a broad application, provides protections for abortion rights. Lawmakers are still expected to push for new restrictions on abortion.

Rhode Island

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Rhode Island Constitution’s equal protection clause explicitly provides, “Nothing in this section shall be construed to grant or secure any right relating to abortion or the funding thereof.” The Rhode Island Supreme Court held in 2022 that that the state Reproductive Privacy Act is permissible under the state constitution—and that the impact of the state equal protection clause’s restriction doesn’t bar the legislature from recognizing abortion rights by statute.

South Carolina

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The South Carolina Supreme Court has not ruled on whether the state constitution recognizes a right to abortion.

South Dakota

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The South Dakota Supreme Court has not ruled on whether the state constitution recognizes a right to abortion.

Tennessee

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Tennessee Supreme Court ruled in a 2000 case Planned Parenthood of Middle Tennessee v. Sundquist, that the state constitution recognized a right to abortion. But in 2014, state voters added Section 36 to Article I of the constitution, which provided that the state constitution does not recognize a right to abortion.

Texas

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Texas Supreme Court has not ruled on whether the state constitution recognizes a right to abortion. While a 1993 ruling expressed openness to it on the basis of a right to privacy, the court did not affirm this, and it is now strongly conservative. In 2002, the court rejected the argument that the state’s refusal to fund medically necessary abortions violated the Texas Constitution, and its current conservative composition makes it unlikely that the court would revisit this issue.

U.S. Virgin Islands

The U.S Virgin Islands does not have a constitution; it operates under the Revised Organic Act of the Virgin Islands, which can be modified by the U.S. Congress. The Virgin Islands Code permits abortion.

Utah

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Utah Supreme Court has not ruled on whether the state constitution recognizes a right to abortion. 

But a case presently in state courts is seeking to recognize that right; a lower-court judge has temporarily blocked the state’s trigger ban, and the state supreme court may end up weighing on the issue.

Vermont

Does a still-binding ruling hold that the constitution contains a right to abortion? Unclear.

Context: The Vermont Supreme Court has not explicitly ruled on whether the state constitution recognizes a right to abortion. In a 1972 case, the court struck down an abortion restriction as unconstitutional, but did not clarify whether it was relying on the federal or state constitution to do so—and it has not further elaborated on that in subsequent decisions. However, in November 2022, a constitutional amendment establishing an explicit right to abortion will be voted on.

Virginia

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Virginia Supreme Court has not ruled on whether the state constitution recognizes a right to abortion.

Washington

Does a still-binding ruling hold that the constitution contains a right to abortion? Yes, but it’s complicated.

Context: The Washington Supreme Court ruled in the 1975 case State v. Kroome that the state constitution’s implied right to privacy in Article I, Section 3, protects abortion. This decision relied on the holding that the state constitution contained the same level of protections as the federal constitution; in the wake of the U.S. Supreme Court’s decision in Dobbs, then, the status of abortion protections under Washington’s state constitution is unclear.

Following Dobbs, Democratic Governor Jay Inslee has called for a state constitutional amendment explicitly protecting abortion rights. Also, state progressives have been especially successful at tapping into the Washington State constitution’s “untapped potential” for civil rights thanks to a progressive majority.

West Virginia

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The West Virginia Supreme Court of Appeals ruled in 1993 that the state constitution recognized a right to abortion. But in 2018, state voters added Section 57 to Article VI of the constitution, which provided that the state constitution does not recognize a right to abortion; the amendment effectively nullified the 1993 case.

Wisconsin

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Wisconsin Supreme Court has not ruled on whether the state constitution recognizes a right to abortion. 

A case presently in state courts brought by Democratic Governor Tony Evers and Attorney General Josh Kaul is asking for that right to be recognized under the state constitution. The supreme court’s conservative majority is on the line in the 2023 elections.

Washington, D.C.

The District does not have a constitution. It operates under the D.C. Code, which provides broad abortion rights, but Congress has the power to modify the D.C. Code. Congressional Republicans have already indicated their desire to outlaw abortion in D.C., as well as to take away its ability to govern itself.

Wyoming

Does a still-binding ruling hold that the constitution contains a right to abortion? No.

Context: The Wyoming Supreme Court has not ruled on whether the state constitution recognizes a right to abortion.

The post What All State Constitutions Say About Abortion, and Why It Matters appeared first on Bolts.

If the U.S. Supreme Court strikes down Roe vs. Wade, the right to access abortion will stay protected in Kansas—at least for now—because of a recent ruling by its state supreme court. The North Carolina Supreme Court struck down Republican gerrymanders earlier this year, producing fairer midterm maps. And last year, Washington State’s supreme court restricted sentences of life without parole for youth beyond what the U.S. Supreme Court has established. 

Judges grounded all of these decisions in their state constitutions. As conservatives flex their stronghold on the federal bench to unravel decades of constitutional protections, state courts can offer alternative paths for civil rights litigation. Inversely, some state courts are proving as zealously conservative as the U.S. Supreme Court, as when Louisiana’s high court effectively restricted the right to protest earlier this year.

The midterm elections are now poised to reshuffle many supreme courts. Voters will elect dozens of justices all around the country, expanding or restricting these courts’ viability as a counter-weight to federal judges.

These elections will decide many of the judges who will hear election law cases in 2024, when former President Donald Trump could once again push to overturn election results. They may also hear many more cases dealing with reproductive rights if the end of Roe makes each state responsible for determining the legality of abortion.

The stakes are most transparent in the four states where the partisan balance of their supreme courts is on the line this fall—Illinois, Michigan, North Carolina, and Ohio.

But the 2022 cycle could also shift jurisprudence across the country if the fragile balance of power is altered in some state supreme courts. In Arkansas, Montana, and New Mexico, for instance, conservative lawyers are running to push the bench further to the right. In Washington State, justices who have formed a narrow progressive bloc are up for re-election.

Most states with supreme court elections this year organize them as regular elections, namely races where multiple candidates face off against each other. Other states straddle a middle ground between appointed and elected judiciaries, with appointed judges facing so-called retention elections, which are up-and-down votes without challengers. It is exceedingly rare for justices to be ousted in retention elections—in fact, in some states this has never happened—though this is at least an avenue for major upheavals this fall in populous states such as Arizona, California, and Florida, if organizing on the left or right were to pick-up. 

This breakdown from Bolts walks you through each state’s supreme court elections, telling you who’s running at this stage and why the race could matter. 

As the year progresses, new resignations and vacancies could spark new judicial elections, or even cancel them. Ballotpedia’s database can keep you up-to-date.

States with regular supreme court elections

Alabama

A longtime election lawyer for Republicans, Greg Cook is now sowing doubt about the handling of the 2020 election and blaming other state supreme courts for allowing expanded voting options that year. These Trumpian concerns are a major reason he is running to replace a retiring Alabama justice this year, he says. In the May Republican primary, Cook defeated lower-court judge Debra Jones, who also tied herself to the former president, in the Republican primary. He will be favored against Democrat Anita Kelly in the November general election given the state’s politics.

In the state’s second supreme court election, Republican Justice Kelli Wise drew no challenger.

Arkansas

Arkansas’s supreme court elections are ostensibly nonpartisan—but in the May 24 elections, candidates with close ties to the GOP hope to push the court to the right. 

Justice Karen Baker faces Gunner DeLay, a lower-court judge and former Republican lawmaker. DeLay, besides touting his conservative politics, is using the old-school tactic of attacking Baker over a vote she took to vacate a murder conviction. (The court found in that case that a charge had been filed in the wrong jurisdiction.) And one of the two challengers to Justice Robin Wynne is the former executive director of the state Republican Party, Chris Carnahan. (A third justice, Rhonda Wood, is unopposed.)

Update (Sept. 26): Baker defeated DeLay on May 24, but Carnahan forced Wynne in a November runoff, Bolts reported.

Georgia 

On paper, the 2022 cycle had the potential to rock Georgia’s supreme court: Four seats, a majority of seats on the court, were meant to be on the ballot at once. But by the time the filing deadline passed, one of those four elections was canceled, and two incumbents recently appointed by Governor Brian Kemp had drawn no opponent. 

The reason: A “dystopian” loophole that allows Georgia officials to game the system by delaying elections at the last minute, pulling the rug out from under challengers late into a campaign—as state Republicans did in 2018. The gambit appears to be having a chilling effect on candidates’ willingness to jump in.  

As the state’s supreme court moves further to the right, at least on criminal justice issues, this legal loophole helps Republicans lock down a conservative bench as long as they have the governorship. The one justice who faces an opponent in the May election is Verda Colvin, against Veronica Brinson.

Idaho

Justices Robyn Brody and Colleen Zahn will each be unopposed as they seek a new term. 

Even though it is mostly made up of Republican appointees, this supreme court has protected progressives’ efforts to use direct democracy to circumvent the GOP-run state government. In 2019, it ruled against a conservative lawsuit seeking to invalidate a ballot initiative that expanded Medicaid; last summer, it struck down a Republican law that would have made it significantly harder to qualify an initiative on the ballot. Zahn just joined the court in the summer of 2021 and took part in neither of those decisions; Brody was part of the majority in the latter ruling.

Illinois

Partisan control of the Illinois supreme court could flip, and Republicans had to score an unlikely win just to get this far. A Democratic justice lost an up-or-down retention vote in 2020 and had to leave the court, which triggered an extra election to replace him this year. Two seats are on the ballot, and Republicans would seize control of the court—and with it the power to revisit the state’s Democratic gerrymanders, among other state issues like pension reform—if they win both.

Illinois justices are elected by district rather than statewide, which helps Republicans as neither of the two elections that will decide the court’s partisan balance involves any voter from heavily Democratic Cook County. (The state constitution gives Cook County three supreme court seats, and the rest of the state gets four.) Democrats redrew the judicial map last year for the first time since the 1960s; the 2nd district (Lake, Kane, McHenry, Kendall and DeKalb counties) and 3rd district (Bureau, DuPage, Grundy, Kankakee, Iroquois, LaSalle, Will counties) will decide the court’s balance. 

Separately, one Illinois justice from each party is facing a retention election. 

Kentucky

Joseph Fischer, a Republican lawmaker who has led the fight to pass abortion restrictions in the Kentucky legislature, is now running for a seat on the state supreme court. He is challenging Michelle Keller, a Democratic-appointed justice, in the sixth district, in northern Kentucky. That election is one of several that will decide this supreme court’s membership this year, since two justices are not seeking re-election in the second and fourth districts. Kentucky’s high court has been an active player in the battles between the Democratic governor and Republican legislature, for instance in its unanimous ruling last year reinstating a law that limited the governor’s public health emergency powers.

But the biggest fireworks in Kentucky’s judicial elections may be found in the very local election for the circuit court of Franklin County, a small jurisdiction that has outsized importance for civil rights and voting rights and has drawn the attention of U.S. Senator Mitch McConnell, as Bolts reported in February. 

Louisiana

The Louisiana Supreme Court issued a 6-1 ruling earlier this year that makes protesters guilty by association, threatening the right to protest. And conservatives’ stronghold on the court is sure to continue after 2022. The one justice due to face voters this year is John Weimer, who joined the majority in that ruling, and who represents the 6th judicial district, a large coastal area in the southeast of Louisiana. Weimer faced no opponent in his prior two elections in 2002 and 2012; the filing deadline for 2022 has not yet passed. 

Update (Sept. 26): No one filed to challenge Weimer by the filing deadline for the third consecutive cycle. Weimer has thereby secured another term.

Michigan

The 2022 elections will decide nothing less than who controls the state supreme court in one of the nation’s premier swing states during the 2024 presidential race. And since allies of Donald Trump who trot out his Big Lie are trying to take over the machinery of election administration in Michigan, this supreme court may come to play an exceptionally important role at that time. The court’s majority will also be critical on criminal justice issues given a new slate of party-line decisions this year.

Democrats currently enjoy a 4-3 majority on the court. One justice from each party faces voters this year (Richard Bernstein and Brian Zahra, respectively). Republicans need to win both seats to regain control of the court.

Minnesota

Natalie Hudson and Gordon Moore, who are both justices appointed by Democratic governors, are up for re-election this year. Minnesota’s supreme court elections appear as nonpartisan on the ballot, and incumbents have easily won all elections held over the last decade. 

Update (Sept. 26): No one filed to run against either Hudson or Moore.

Montana

Conservatives want more control over Montana’s judiciary, and they have tried (unsuccessfully so far) to change election rules. This year, they are taking aim at both supreme court justices on the ballot, Democratic-appointed Ingrid Gayle Gustafson and GOP-appointed James Rice. 

Gustafson in particular faces an opponent who enjoys strong support from the state’s Republican officials: Jim Brown, a former counsel for the state’s Republican Party, as well as for a group that took down the state’s election disclosure laws. (A lower-court judge, Mike McMahon, is running in this election as well.) Montana’s supreme court is now at the center of the state’s latest voting rights disputes, as it’s long been, adding special importance to this showdown.

Nevada

Incumbent judges frequently go unopposed, and that will be the case this year for Justice Ron Parraguirre. But what’s more surprising is that the retirement of Justice James Hardesty has also occasioned no contest: Linda Bell, a lower court judge who has worked as a federal public defender and as a local prosecutor, is the only candidate and will join the state’s highest court. 

New Mexico

New Mexico’s state supreme court, which is currently entirely made up of Democratic justices, is sure to keep its Democratic majority this fall. But Republicans could narrow their deficit; Justices Julie Vargas and Briana Zamora, both appointees of Governor Michelle Lujan Grisham, will face GOP challengers Thomas Montoya and Kerry Morris, respectively. 

In a letter touting his candidacy, Morris casts Montoya and himself as “conservative voices,” and frames his bid as an answer “to the power of George Soros and Zucker Bucks [in reference to Mark Zuckerberg] to control the elections in New Mexico.” As Bolts reported in March, some on the right are fomenting conspiracies tying election funding to Soros and Zuckerberg, both of whom are Jewish, often spuriously.

North Carolina

The math is simple but the stakes are high in North Carolina. Democratic justices hold four of seven Supreme Court seats but they must defend two this year. If a Republican flips just one of them, they would gain control of the court. 

Given the state’s recent history, a partisan flip would affect the outcome of major civil rights cases. In recent years, the Democratic-majority court has voted on party lines to struck down GOP gerrymanders expanded the scope of racial discrimination appeals in the criminal legal system. It is now considering the constitutionality of the state’s felony disenfranchisement statutes in a case that may restore voting rights to tens of thousands of North Carolinians.

Depending on the outcome, Democrats may rue the 2020 cycle, when Democratic Chief Justice Cheri Beasley lost her re-election race by just 401 votes.

North Dakota

Justice Daniel Crothers is running for a new 10-year term unopposed, just like the last two times he faced voters, now that the filing deadline has passed for anyone to challenge him.

Ohio

Ohio’s highest court struck down Republican gerrymanders on 4-3 votes this year, with the three Democratic justices who prevailed in 2018 and 2020 in the majority, joined by Republican Chief Justice Maureen O’Connor. 

But everything is now on the line in 2022. Three seats are on the ballot, and all are now held by Republican justices, so Democrats have a shot at grabbing a majority of the court. But the court could also shift to the right because O’Connor is barred from seeking re-election due to her age. This means that, if Republicans sweep the cycle’s three elections, and even if these would all be partisan holds, it would likely tip the balance toward them in future redistricting cases, and re-open the gerrymandering floodgates.

One twist: The only Democrat running for O’Connor’s chief justice seat is Jennifer Brunner, who is already a justice on the court. Were she to win and flip that seat for Democrats, Ohio’s Republican governor would likely get to appoint Brunner’s successor. In other words, Democrats must flip one of the other two seats—ousting either Pat Fischer or Pat DeWine, the son of the state’s governor—to be sure to seize a court majority. 

Oregon

Governor Kate Brown appointed Roger DeHoog, a lower-court judge with past experience as a public defender, to the state Supreme Court in January. The appointment was noteworthy given the dearth of justices who have worked as public defenders in state supreme courts.

DeHoog is now seeking a full 6-year term—and he is sure to win, since no one filed to challenge him.

Texas

Conservative “stop the steal” activists fell short in their effort to oust a Republican judge in the March primary; they were angry at Scott Walker’s vote late last year to limit the attorney general’s efforts to investigate voter fraud. Now, it’s time for the general election. All 18 judges across the state’s two high courts are Republican, and five of them (including Walker) will face Democratic challengers in November. 

Democrats will have their work cut out for them: They haven’t won a statewide election in the state since 1994, and all the seats on the 2022 ballot (three on the Court of Criminal Appeals, which handles criminal cases, and three on the Supreme Court) feature a GOP incumbent. Of note: Two of the Democratic challengers, Erin Nowell and Amanda Reichek, are lower-court judges who beat Republican incumbents in 2018.

Washington

Washington’s supreme court has grown more progressive and diverse with Governor Jay Inslee’s appointments, with major ramifications for criminal justice. Last year, the court issued landmark rulings that expanded restrictions on life sentences, and that struck down state statutes that criminalized drug possession. (State Democrats then passed a law that makes drug possession a misdemeanor; it was a felony before the court’s ruling.) Both rulings were 5-4, a sign of the importance of court membership even in reliably Democratic-states.

Two of the justices in this emerging progressive majority, Mary Yu and Helen Whitener, have to face voters to secure new terms this year, as does a third incumbent, Barbara Madsen.

Incumbent justices seeking re-election in Washington have won very easily in recent cycles; the elections appear on the ballot as non-partisan.

Update (Sept. 26): None of the three justices who are seeking a new term this year will face an opponent on the ballot.

States that only have retention elections this year

Alaska

Daniel Winfree, the only sitting justice appointed by former Governor Sarah Palin, is technically up for retention this year, but he is set to hit the mandatory retirement age early next year anyway. Whomever is elected governor this fall will appoint Winfree’s replacement, and at least one other justice, and candidates are connecting the dots to future of abortion rights.

Arizona

Bill Montgomery built a punitive record as prosecutor of Arizona’s Maricopa County until he was nominated to the state supreme court in 2019 by the Republican governor. This year, he faces his first retention election, alongside other Republican-nominated justices. The political context is explosive: The GOP expanded the court’s size and changed the appointment procedure last decade to solidify conservative power.

On paper, all of this could all add up to a major showdown—if it weren’t so exceedingly rare for Arizona judges to fail retention elections. When voters ousted a county judge in 2014, it was the first time an Arizona judge had lost a retention election in decades. And it has not happened since.

California 

It would mark a significant break with recent history if California’s retention elections proved contentious this year. No justice has so much as dipped below two-thirds of the vote in the last two midterm cycles. Still, four justices are up for retention this year—one appointed by Arnold Schwarzenegger, another by Jerry Brown, and two by Gavin Newsom.

Progressives looking to affect the court have focused their efforts on pressuring Governor Gavin Newsom to appoint a justice with background as a public defender, which has not happened in decades in this state. But both of Newsom’s appointments have prosecutorial experience instead. 

Florida

Five of the seven justices on Florida’s supreme court are up for retention this year, including two appointed by Republican Governor Ron DeSantis. On paper, then, Democrats have a path to reverse the court’s dramatic rightward shift; also on paper, the right could push its advantage since one of the justices on the ballot, Jorge Labarga, is part of the court’s shrinking left flank.

But in practice, it would be an immense undertaking to convince the electorate to fire a justice. No judge has ever lost a retention election in Florida. 

And regardless of the ballot box, conservatives are likely to further solidify their hold on this court since Alan Lawson (one of the court’s less conservative justices) recently announced he would retire over the summer, granting DeSantis yet another appointment.

Indiana

Justice Steven David was meant to face a retention election in 2022, but he indicated instead that he would retire at the end of the year, so Indiana will host no supreme court race this year. Republican Governor Eric Holcomb will choose David’s replacement in the coming months.

Iowa

Not long ago, Iowa’s supreme court leaned liberal, as it issued a landmark ruling on same-sex marriage in 2009 and considered other progressive lawsuits. But the court has swung to the right alongside the rest of the state because conservatives ousted three justices in the 2010 cycle, and later Republican governors got to appoint many judges. The 2022 ballot features retention elections for two of GOP Governor Kim Reynolds’s appointees, Dana Oxley and Matthew McDermott, who long worked as a lawyer for Republican politicians.

Kansas

The Kansas Supreme Court ruled in 2019 that the state constitution protects access to abortion. That landmark decision, which drew just one dissenter, was the latest in a string of decisions on reproductive rights. Those battles bled into the electoral realm in 2016, when conservative groups led by Kansas for Life targeted a group of justices. But all incumbents prevailed that year by margins no smaller than 10 percentage points.  

This year, six of seven Kansas justices (three of whom joined the court after that 2019 ruling) are on the ballot in retention elections.

Conservatives are seeking another route this year to overturn the court’s rulings on reproductive rights: Kansans will vote on a constitutional amendment on August 2 that would affirm there is no right to an abortion in the state constitution, effectively overturning the court’s 2019 ruling. (If the referendum fails, though, the court’s composition will remain paramount for this issue.)

Redistricting is also on the menu: By the time these retention elections come around, the Kansas supreme court will have settled the uncertain fate of the state’s GOP gerrymander.

Maryland 

Five of the court’s seven judges have been appointed by Republican Governor Larry Hogan and confirmed by the Democratic-controlled state Senate. Hogan’s first four appointees easily cleared their retention elections in past cycles, receiving at least 75 percent of the vote. The fifth, Steven Gould, faces voters this year.

Missouri 

Two judges face voters in retention elections this year: longtime incumbent Zel Fischer, and the recently appointed Robin Ransom. Retention elections have been uneventful in Missouri’s recent history; no judge has received less than 63 percent of the vote over the past ten years, and often they win with even higher margins.

Nebraska 

Nebraskans have overwhelmingly voted to retain their supreme court justices ever since a successful campaign in 1996 to oust David Lanphier over some of his rulings, including one that gave dozens of people incarcerated over murder convictions the opportunity for new trials. There is no indication so far that this year will be any different, with four justices up for retention if they choose to seek new terms.

Oklahoma

Oklahoma’s supreme court judges have never lost a retention election, according to The Oklahoman, despite the court’s history of high-profile decisions. There’s no reason so far to suspect that 2022 will wield a different result. Up for retention this year: Two longstanding justices who have already won two retention elections, alongside two newly appointed judges.

South Dakota

In November, South Dakota’s Supreme Court struck down a voter-approved initiative that legalized marijuana. The decision could become a campaign issue, considering two of the four justices who issued that ruling are facing voters in a retention election this year.

Tennessee 

Tennessee’s Supreme Court has already shifted rightward in 2022: In January, Governor Bill Lee appointed Sarah Campbell, a conservative jurist and former clerk for Samuel Alito, to replace one of the court’s only two Democratic-appointed justices, who passed away in the fall. 

As recently as 2014, a majority of justices were appointees of a Democratic governor. That year, conservatives launched a major offensive to oust them, but all incumbents prevailed that year by double-digits. Republicans have controlled the governor’s mansion since 2011, though, and they have been able to change the court’s composition through appointments.

The only remaining Democratic-appointed justice, Sharon Lee, is up for retention this year, as is Campbell and other justices. 

Utah

Utah justices facing retention elections over the past decade have all won with at least 75 percent of the vote, which bodes well for Justice Paige Petersen in her retention election this year. The bigger upheaval this year is that GOP Governor Spencer Cox gets to fill two vacancies, including one triggered by the retirement of Thomas Lee, brother of U.S. Senator Mike Lee.

The post Your State-by-State Guide to the 2022 Supreme Court Elections appeared first on Bolts.

Washington State is now presenting a blueprint for how progressives can shield themselves and even amp up civil rights protections beyond what federal courts are willing to extend.

Its state Supreme Court last week issued a landmark ruling that bars mandatory sentences of life without parole for anyone under the age of 21. This decision is a judicial milestone in moving past the cutoff age of 18 that the U.S. Supreme Court established in its federal rulings. 

That decision came on the heels of another sweeping ruling, issued two weeks earlier, that struck down the state’s statutes criminalizing drug possession. The wide scope of the drug possession decision stunned even reform advocates who hoped for a favorable ruling. It has made drug possession effectively legal in the state, retroactively; the ruling is now forcing state and local officials to cease arrests, drop ongoing cases, and vacate old convictions.

For people who are wary of the federal judiciary’s rightward turn, these decisions may signal a path forward.

The Washington Supreme Court grounded its two new rulings in part on the state constitution’s due process clause and on its ban on “cruel punishments.” Federal courts tend to not review such interpretations, showing off what advocates have to gain by pursuing claims in state courts and strategizing on how to win there. 

The decisions also crystalize the stakes of who sits on state benches, even if the scrutiny around the selection of these judges pales in comparison to federal battles.

“It is hard to miss what I call the Trumpification of federal courts,” said Daniel Greenfield, an attorney at the MacArthur Justice Center. “Increasingly, there’s a feeling among civil rights litigators and other lawyers and organizations interested in challenging the criminal legal system that the focus has been on federal courts for too long, and that there’s another potent tool that ought to at least be tried. That doesn’t mean that important gains can’t be made in federal courts, … but there are these 50 other court systems, all of which have a duty to vindicate the rights of their citizens.” 

Some of these courts have “untapped potential” for civil rights litigation, he added. These judges shape the landscape on voting rights, criminal justice, labor rights, and more.

On Washington’s highest court, at least, a progressive bloc may now be consolidating. This shifting balance of power is clarifying that this is not just a matter of which party has more judges. On this liberal-leaning court, distinctions are emerging based on how broadly judges are interpreting rights and how willing they are to rock the boat when faced with violations.

Both decisions came in narrow 5-4 rulings that broke along the same lines. In each case, the controlling side was made up of the five most recent justices to join the court. Two of them were appointed just last year by Governor Jay Inslee—appointments that at the time raised the possibility that the court may swing toward bolder outcomes on criminal justice cases. They then won elections in November and clinched the majorities in these two 2021 rulings.

“This last year has been pretty extraordinary, and it’s heartening,” said Mary Kay High, a public defender who is chief deputy in Pierce County’s Department of Assigned Counsel. “Those are elected judges, and I applaud the courage of putting their names on a decision that may be controversial,” she added, pointing to law enforcement’s mobilization against the rulings.

—

The Washington Supreme Court is not new to the business of overturning sentencing statutes. In the fall of 2018, it struck down the death penalty and barred all life without parole sentences for youth under 18. But with those rulings, the court was playing catch-up to standards set in other states. It made Washington the 20th state to abolish capital punishment and the 21st to end juvenile life without parole.

The rulings issued over the last month, by contrast, showed off a newfound willingness to forge ahead and set benchmarks for the rest of the country. 

The court’s evolution, fueled by the arrival of the two new justices, is evident compared to what happened almost exactly one year ago. In January 2020, a justice who had dissented in the 2018 case ending juvenile life without parole retired and was replaced with Raquel Montoya-Lewis. Even with that switch, the votes were still not there for those justices looking for a bolder path. In March, as the pandemic was spreading, all nine justices agreed that law enforcement should reduce unnecessary arrests to shield people from COVID-19 in jails, but they split 5-4 on how much to restrict arrests. The majority, which included judges who were part of the 2018 rulings, took a narrower approach. But now they faced a minority—made-up of Montoya-Lewis, Steven González, Sheryl Gordon McLoud, and Mary Yu—that was urging them to go even further.

Within weeks, the court’s membership changed again. Charles Wiggins, one of the five justices in the majority in that COVID-19 ruling, retired. Inslee replaced him with Helen Whitener, whose arrival flipped the balance between the two camps exposed by that pandemic decision. 

In both of the court’s new rulings on life without parole and drugs, the majority consisted of Whitener plus the four justices who argued that last year’s COVID-19 ruling was too timid. 

First, on Feb. 25, this five-member majority struck down the statute that criminalized drug possession. “Our state constitution’s due process clause provides even greater protection of individual rights [than the federal clause] in certain circumstances,” the court wrote.

State lawmakers are now considering whether, and how, to replace the overturned statute. Some have proposed criminalizing drug possession again, but reform advocates want the state to reckon instead with the failures of the war on drugs. Just four months ago, a ballot initiative made neighboring Oregon the first state to decriminalize drug possession. 

This decision was made on narrow grounds in that the court did not take issue with the broad aim of punishing drug possession. It took issue instead with a rare feature of state law: Washington convicted people without having to prove that they were aware they had drugs. 

But the problem’s specificity only underscores the boldness of the court’s choice to issue a sweeping remedy and overturn the statute in its entirety, which voided thousands of convictions. Courts, much like lawmakers, are often sensitive to arguments that it is just not practical to repair rights violations and that bringing finality to cases justifies ignoring the past, so they refuse to make changes retroactive. But not this time.

Reform advocates are delighted that the majority was undaunted by concerns that it would be too much of a burden to ask the state’s legal system to fix the unjust harm it has caused. 

“While it may strike some lawmakers and law enforcement as burdensome, it is only the beginning of what is required to deliver true justice to our communities,” said Kendrick Washington II, the youth policy counsel at the ACLU of Washington 

High echoed this assessment. “Do we really think that workload should outweigh a constitutional protection?” she asked.

The life without parole ruling, issued on March 11, will similarly force the state to confront the past and review existing sentences. 

Up to 26 people who are now incarcerated will be eligible for resentencing hearings, according to the Associated Press. Under the ruling, judges can still sentence people ages 18 to 21 to life without parole, but they need to consider factors specific to the individual, and they will have the option to offer another sentence in murder cases where that option did not previously exist. 

Advocates nationwide have been making the case for broadening youth justice by pointing to studies that show people undergo major cognitive development well into their 20s. 

“Washington State’s decision is important in that it ensures that there is consideration of youth,” said Heather Renwick, legal director of the Campaign for the Fair Sentencing of Youth. It recognizes that “nobody on their 18th birthday miraculously wakes up an adult” and “that all young people are capable of positive growth and change.” But, she added, “because it still leaves life without parole as an available sentencing option, there is room for the Washington legislature to take the next step and say that no young person should be sentenced to life without parole.” 

According to Renwick, the March 11 ruling is the first state court decision to extend the federal Supreme Court’s ban on mandatory life without parole for minors to youth beyond the age of 18. That said, some legislatures like in California and Washington, D.C. are increasingly taking even stronger steps in this arena. Just last month, a bill that would have barred life without parole for anyone under 25 passed in South Dakota’s  GOP-controlled Senate, though it eventually died. 

“I suspect that this decision reflects what is to come,” said Renwick, “and I think that it is going to be a combination of state constitutional analysis and state legislatures really thinking about what is age appropriate accountability for young people in their state.”

—

The new dividing lines between Washington justices could pave the way for more transformative decisions. And it has observers asking what has fueled the court’s shift. 

When Whitener was appointed last year, High told the Political Report that her background as a defense lawyer was “not the typical path to the bench.” (Gordon McCloud, who wrote the lead opinions in the new life without parole  and drug cases, has worked as a criminal defense lawyer as well.) Whitener, a former prosecutor and trial court judge, has also worked as a public defender, which remains relatively rare for judges. A Political Report analysis in October found that California’s Supreme Court includes three former prosecutors, but that no state justice since the 1980s has been a public defender. Federal appointments have long followed similar patterns.

But California notwithstanding, a new attitude may be spreading to some governors. This week, for his second appointment to the New Jersey Supreme Court, Governor Phil Murphy announced that he had chosen a civil rights attorney and former ACLU of New Jersey staffer, Rachel Wainer Apter. Washington’s justices could also be a model for presidential appointments amid a push to rework who makes the bench. Locally, activism around the power of local judges is growing.

Greenfield warns that until now conservatives have been generally more proactive about organizing state courts.

In recent years, Arizona Republicans expanded the size of the state Supreme Court to drive it to the right; Georgia’s GOP governor maneuvered to cancel multiple judicial elections on the 2020 ballot; and Montana and Pennsylvania Republicans are plotting to overhaul electoral rules and set up gerrymandered judicial maps in hope of grabbing control of the judicial branch.

In addition, it remains challenging for advocates or candidates to explain the stakes of these  appointments and elections—especially in places, such as Washington, where these shifts are about ideological nuances that partisan identification alone cannot manifest. Making elections for local judge salient can be even more difficult despite their vast powers on matters such as bail.

Greenfield, whose litigation focuses on prison conditions, insists that far more can be done to advance civil rights by leveraging the power of state courts. “There’s no reason why, say, Washington can’t afford its citizens greater liberties than is the minimum required by the federal Bill of Rights,” he said. 

And he added that changes in one state can build into a national wave that ends up bigger than the sum of its parts. “If a majority of state courts ultimately hold that, say, prolonged solitary confinement is unconstitutional,” he said, “federal courts would likely take notice of that.”

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Governor Jay Inslee made his third appointment to the Washington Supreme Court last week, elevating G. Helen Whitener, a judge on the Pierce County Superior Court. 

In joining a supreme court that has recently driven major criminal justice reform, and that is generally progressive but often divided, Whitener could determine how boldly it proceeds in years ahead. 

Whitener replaces Justice Charles Wiggins, who retired last month. To keep the seat, she has to run in the November general election and then again in 2022, when Wiggins’s term would have ended. Three other justices are up for re-election this fall as well.

Her appointment has drawn attention for boosting the representation of marginalized groups. She is a Black, gay, and disabled immigrant from Trinidad. With her appointment, Washington’s Supreme Court is the most diverse appellate court in the country.

Whitener also adds range in terms of professional experience. She had been a trial court judge since 2015, and before that served as both a prosecutor and a criminal defense lawyer, including as a public defender in Pierce County’s Department of Assigned Counsel. The judiciary, including both state and federal courts, is littered with former prosecutors. Former defense lawyers, and public defenders in particular, are significantly underrepresented.

Mary Kay High, the chief deputy in that Pierce County office, noted that criminal defense is “not the typical path to the bench.” She believes Whitener’s diverse professional background will play a crucial role on a court with justices regarded as liberal but fiercely independent. 

As a superior court judge who previously represented people harmed by prosecutions, Whitener recognized how the criminal legal system’s punitive aspects can be unjust and counterproductive, setting people up to fail and remain trapped in the system. 

Last year, for instance, she said the fines and fees attached to criminal convictions “have accumulated at a ridiculous rate.” She stressed that judges have broad discretion over most fines and fees and should only impose such obligations when people can afford to pay, taking into account a person’s income and other financial obligations. “We can’t on one side say we’re helping people who are leaving our prison system, and then burden them with all of these fines,” she said.

In that same interview, she also advocated against incarcerating youth offenders for so-called status offenses, which only apply to children — like skipping school, running away from home, and underage drinking — echoing state advocates’ calls to treat kids like kids. She added,  “these children are experiencing trauma of some sort, and incarceration is not the answer for dealing with that situation.” Washington, which had an exceptionally punitive system with regard to status offense detentions, adopted a law restricting them in 2019. 

Whitener brings this sensibility to a court that has been repeatedly at the forefront of criminal justice reform over the last decade—though often without unanimity, and with room to go further, creating opportunity for a new justice to push the court in an even more progressive direction. 

It’s an “interesting time on the Supreme Court,” High said. “There are some close splits and we can’t predict votes. The more voices with diverse backgrounds, the more thorough the deliberations and the better the decisions.”

In 2018, the court unanimously struck down Washington’s death penalty statute as unconstitutionally “cruel.” But it did so because the punishment had been applied in an arbitrary and racially biased way, not because it is inherently unconstitutional, giving lawmakers the chance to revive capital punishment in the future. “We leave open the possibility that the Legislature may enact a ‘carefully drafted statute,’” the court’s controlling opinion said. “But it cannot create a system that offends constitutional rights.” 

Other recent decisions, including those involving punishments for youth offenders, racism in jury selection, and how to reduce arrests and incarceration in response COVID-19, show how some of the court’s landmark rulings remain fragile, and where reform advocates have space to push the court further. 

In 2018, the court burnished its progressive reputation when it prohibited sentencing people under age 18 to life without the possibility of parole or early release. But that decision was 5-4, with Justice Wiggins, Whitener’s predecessor, in the narrow majority. (One of the dissenters, Justice Mary Fairhurst, was replaced this year by Justice Raquel Montoya-Lewis, whom Inslee appointed in January). 

Also in 2018, the court adopted a new rule — the first of its kind in the country — designed to root out “implicit, institutional, and unconscious” racial and ethnic bias in jury selection. Although the U.S. Supreme Court has prohibited intentional race discrimination in selecting juries, that rule is nearly impossible to enforce, with discrimination too often smuggled in through “race neutral” explanations that play on racial stereotypes or disproportionately apply to nonwhite communities. Prosecutors can still follow that prohibition while constructing all-white juries by excluding people who, for example, live in high-crime neighborhoods, or believe that police officers racially profile, or know people who have been arrested. 

Under the rule adopted by the Washington Supreme Court, these explanations are presumptively invalid, and potential jurors cannot be struck if an “objective observer” could view race or ethnicity as a factor in the decision to remove them. 

But here, too, the court fell short of the bolder vision of some of its members. 

In a 2013 case, the  justices agreed “that racial discrimination remains rampant in jury selection,” but not on what to do about it. At the time, Justice Steven Gonzalez, who is still on the court, wanted to go further than what the court eventually adopted in 2018. Gonzalez said prosecutors and defense lawyers should never be allowed to exclude jurors without a legal justification to do so, a proposal that mirrors what U.S. Supreme Court Justice Thurgood Marshall wrote decades ago, and that would prohibit entirely “peremptory challenges” — which allow lawyers to strike jurors without cause. Their use “contributes to the historical and ongoing underrepresentation of minority groups on juries, Gonzalez wrote. 

On March 20, the court divided 5-4 over how far it would go to prevent unnecessary arrests and release people from jail to prevent the spread of COVID-19. The majority ordered judges not to issue bench warrants when someone fails to appear (absent a determination that there is an “immediate” public safety threat). But that left courts free to issue warrants for other reasons, including for people who allegedly violate conditions of release —  conduct ranging from failing a drug test to missing curfew to traveling without permission. The dissent urged the court to go further and include those circumstances in its warrant ban. 

Wiggins, the retiring justice, sided with the majority and its narrower ruling in this case; the four dissenting justices were the court’s four newest members.   

Along with her potential impact on criminal justice issues, Whitener adds to the court’s unprecedented diversity, which has been a clear priority for Inslee, the state’s Democratic governor since 2013. Montoya-Lewis, whom Inslee appointed earlier this year, is a Jewish Native American jurist who previously served on tribal courts. Justice Mary Yu, whom he appointed in 2014, is an Asian-American, Latinx, and lesbian jurist. With Whitener’s addition, the court has seven women and four non-white justices among its 9 members. 

Last year, a Brennan Center for Justice report found that most states’ high courts are “overwhelmingly white and male,” including 24 all-white state supreme courts, and 13 states that have “never seated a person of color as a justice.” 

Whitener, who also serves as co-chair of the Washington State Minority and Justice Commission, has often explained that a diverse judiciary — one that fully reflects the population it serves — is essential to maintaining trust and confidence in the rule of law.  

“I believe as a marginalized individual, being a Black, gay, female, immigrant, disabled judge, that my perspective is a little different,” she said in February. “So I try to make sure that everyone that comes into this courtroom feels welcome, feels safe, and feels like they’ll get a fair hearing.”

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