Redistricting put Pennsylvania’s Supreme Court where it doesn’t want to be: the political spotlight

During oral arguments last month, multiple justices on Pennsylvania’s Supreme Court said they wanted nothing to do with the case before them.

“This is not a task that we ask for,” one said.

“We’re forced into this,” said another.

They were referring specifically to their discomfort with picking a new congressional map after Gov. Tom Wolf, a Democrat, and the GOP-led legislature failed to do so. But their comments might also reflect a court increasingly uneasy with being injected into partisan politics — and aware that it may be perceived as just another political entity.

It’s easy to see why. The map the court chose was backed by Democratic plaintiffs and had the support of Barack Obama’s former attorney general.

And politics is built into the system: Pennsylvania judges are elected in partisan campaigns. The four justices who approved the map were elected as Democrats (a fifth Democrat dissented). Judicial campaign ads increasingly resemble those for any other campaign. Democrats won the 2015 Supreme Court elections — which set a national record for the most expensive judicial race — and have held a 5-2 majority ever since.

The court has also taken on some high-profile elections and voting rights cases. This was the second time in four years it was the final arbiter of the congressional map. During that time period, the justices effectively decided a contested state Senate election, issued several rulings related to the 2020 presidential election, and waded into disputes between Wolf and lawmakers over pandemic response.

And in the coming weeks, the court is expected to decide the fate of the state’s mail voting law — the subject of relentless attacks by former President Donald Trump and his allies.

» READ MORE: Is the new Pa. congressional map better for Democrats or Republicans? We tested it.

While the court doesn’t always rule in favor of Democrats, some Democrats have come to see it as an important backstop against the legislature and conservative lower courts. At least we have the Supreme Court, they say privately. It was hardly a secret that Democrats believed the high court would deliver a more favorable map than any deal between Wolf and lawmakers.

Republicans, meanwhile, attack the court for what they see as partisan judicial overreach. They have alternately flirted with impeaching one of the justices, cast the court as an arm of the Democratic Party, and introduced constitutional amendments that would change how judges are elected and what power they have.

Deborah Gross, president and CEO of the nonprofit Pennsylvanians for Modern Courts, said the proposed amendments are intended “to make sure that the court is aware that it could be changed.”

The same day of the redistricting decision, the GOP chairman of the Senate State Government Committee said he will introduce a constitutional amendment to make any court-imposed congressional map valid only for a single election cycle — not the 10-year redistricting period.

“Now that the Pennsylvania Supreme Court has chosen to gerrymander the state’s congressional districts for the second time in four years, it becomes imperative to limit the drawing of congressional districts to the General Assembly,” Sen. Dave Argall (R., Schuylkill) wrote in a sponsorship memo.

Two days later, after the court voted unanimously against a GOP motion in another case, State Rep. Seth Grove (R., York) said it was no surprise, since the motion “wasn’t requested by national Democratic dark money groups.”

“#BoughtAndPaid,” he tweeted of the high court.

» READ MORE: All 17 of Pennsylvania’s new congressional districts, explained

Pennsylvania’s high court isn’t the only one caught in the political crosshairs.

Research shows partisan affiliation can have an effect on judicial decisions — consciously or not. An analysis of all 407 election cases in state supreme courts between 2005 and 2015 found that Republican judges issued decisions favoring their party at a 38% higher rate than Democratic judges. The trend, detailed in a Stanford Law Review article, held regardless of whether the judges were elected or appointed.

Approval of the U.S. Supreme Court has sunk to its lowest rating — 40% — since Gallup began tracking public opinion on it in 2000. Some on the left see Trump’s first appointee, Neil Gorsuch, as illegitimate, after Republicans blocked Obama’s nominee in the final year of his term.

Some Democrats want to increase the number of justices, though the prospects for such a change seem dim. And the specter of the court reversing Roe v. Wade and its protection of abortion rights damages the court’s legitimacy in the eyes of many liberals.

“The public’s views of the courts have become much more negative,” said Chris Borick, a pollster at Muhlenberg College in Allentown. “As trust in many government institutions has fallen, so has the trust in the courts. And the Pennsylvania Supreme Court is certainly not immune to that.”

There isn’t much data on views of the state’s high court. Fifty-seven percent of Pennsylvania voters who cast ballots in 2020 “strongly” or “somewhat” trust the court to provide the state with safe, secure, and accurate elections, according to a Muhlenberg poll in January.

Trust is lowest among Republicans: 44% say they somewhat or strongly trust the court on election matters, while 37% say they somewhat or strongly distrust it. The court gets higher marks on the issue than Wolf or the legislature — including among GOP voters.

» READ MORE: Pennsylvania has a new congressional map that will keep the state intensely competitive

Some Harrisburg observers say lawmakers could help protect trust in the judiciary by replacing partisan elections with a merit-driven appointment process.

“They know there’s a big retention election coming in 2025, right?” a lawyer who has been involved in cases before the Supreme Court said. “That’s only a few years away, you know they have to think about, ‘Who’s going to be supporting us?’”

And if retention elections are heated, they can become a referendum on the politics — not law — of the justices’ decisions.

“If it’s gonna turn into every 10 years we’re going to relitigate [every decision], it’s not just about becoming a qualified jurist,” said the lawyer, who spoke on condition of anonymity to discuss a court they practice before. “It becomes about a political power game.”

Republican lawmakers in December advanced constitutional amendments that would limit judges to two 10-year terms and replace the retention election system with full partisan reelections.

“Judges don’t really want to be political animals,” Gross said. “But they’re stuck in that environment, just because of how it’s all set up.”

The politicization of the U.S. Supreme Court shows an appointment system is no panacea. And in some state courts, it can lead to even greater dysfunction. A yearslong political fight between former New Jersey Gov. Chris Christie and the Democratic-led legislature led to a yearslong vacancy on the state’s high court.

And the Pennsylvania court has suffered its share of self-incurred reputational damage: One justice was removed in 2013 after being convicted on corruption charges, and two more resigned after they admitted to sharing inappropriate materials on state computers — part of the so-called Porngate scandal.

Future legislatures and governors may spare the court the need to play a decisive role in redistricting.

But with another presidential election approaching and potential fights to come over abortion, voting rights, and other hotly contested issues, the justices are unlikely to recede from the public eye anytime soon.