After retiring from the Supreme Court in 2006, Justice Sandra Day O’Connor devoted her remaining active years to rescuing the process of choosing judges from the grip of partisan politics. Despite having run successfully for judicial office herself, she believed that judicial selection should be divorced from raising money and glad-handing voters.
Judges to the top courts are now elected in roughly half the states. Judicial elections have long been deplored by good-government organizations, many of which eagerly embraced Justice O’Connor’s efforts. In 2014, Justice O’Connor and a Denver-based organization, the Institute for the Advancement of the American Legal System, published what they called the O’Connor Judicial Selection Plan, under which a broad-based screening and nominating commission would send a list of names to the governor, who would have to choose one of them. The successful candidate would later undergo a performance evaluation and face a yes-or-no retention election, without an opponent.
It’s easy to imagine what Justice O’Connor, who died in 2023 at 93, would have thought about Tuesday’s Wisconsin Supreme Court election, with its $100-million price tag and stratospheric political stakes.
I fully recognize that what I’m about to say is good-government apostasy. Nevertheless, I’d like to suggest that Justice O’Connor may have been wrong.
With its liberal outcome, the Wisconsin election was widely understood as a negative referendum on the Trump administration and specifically as a rejection of Elon Musk’s check-writing intervention in the state’s affairs. It certainly was those things, but it was something else as well. The victory of the liberal candidate, Judge Susan Crawford, means that the Wisconsin Supreme Court will retain its 4-to-3 liberal majority. And that almost surely means that Wisconsin’s days as one of the most gerrymandered of states are numbered.
Although Wisconsin’s voters divide roughly 50-50 (Donald Trump’s victory there last November by 29,000 votes was his closest winning margin in any state), Republicans control six of the eight congressional districts and hold both houses of the State Legislature. Before Republicans took control in 2011, Democrats held five of the eight seats.
In 2023, the state’s Supreme Court invalidated the Republican-drawn state legislative districts as an unconstitutional partisan gerrymander. As a result, new district lines were put in place for 2024 and although Democrats didn’t gain control, they moved closer to parity. The State Assembly went from a 64-to-35 Republican majority to 54-45, while the State Senate, with only half the seats up for election, went from 22-to-11 to 18-to-15. An effort to challenge the congressional gerrymander failed last year but it will be renewed promptly.
This consequence of Wisconsin’s Supreme Court election says something important about judicial elections. This is especially so because the United States Supreme Court has taken itself and all federal courts out of the business of policing partisan gerrymanders. The reason, as Chief Justice John Roberts wrote in the court’s 5-to-4 decision in 2019 involving cases from North Carolina and Maryland, was that partisan gerrymandering was a political matter beyond the reach of federal courts.
It’s obvious that the state lawmakers who have imposed these gerrymanders won’t dislodge themselves. Only the state courts can do that.
Elections for statewide candidates like a governor or a state Supreme Court justice can’t be gerrymandered. As a result, Wisconsin, where the Republicans’ legislative majorities are entrenched by their manipulation of electoral districts to favor themselves, still has a Democratic governor, Tony Evers. And although Wisconsin’s judicial elections are nominally nonpartisan, in effect it has a Democratic Supreme Court as well. The real problem with a gerrymander is that people in a district where an overwhelming majority doesn’t share their preferences come to understand that their vote doesn’t really count. In a statewide election, each vote matters equally.
I’m not sure Justice O’Connor took account of the gerrymander problem when she denounced judicial elections. I followed her post-retirement activities quite closely and never heard her mention it. During her active years, the most pressing concern about judicial elections was the money corporations were spending to try to install business-friendly judges who would support limits on damage awards to injured and defrauded consumers. There was also justifiable concern about voters going to the polls to punish judges for unpopular rulings. In 1986, Chief Justice Rose Bird of California and two associate justices were removed from the California Supreme Court in retention elections after vicious campaigns were mounted against them for liberal rulings on the death penalty, among other issues.
So my point is not to portray judicial elections as a panacea for the failure of democracy that gerrymanders represent. It’s only to suggest that given the country’s extreme polarization and the collapse of Congress as an independent branch of government, there is something to be said for giving voters a voice unconstrained by district lines.
In 2021, Republicans in Pennsylvania, where the political dynamic largely mirrors that of Wisconsin, worried about losing power if they were unable to draw the boundaries of electoral districts to benefit themselves. Pennsylvania’s liberal Supreme Court had not only recently invalidated the state’s gerrymandered congressional districts but also rejected multiple Republican efforts at voter suppression during the 2020 presidential election. So the Republicans proposed carving the court into seven separate electoral districts, as if they were legislative seats, in a scheme to end statewide voting for Supreme Court seats. While the effort failed, the fact that it was even tried attests to the fear in certain quarters about what might happen if voters are let loose.
While Democrats now hold a 5-to-2 majority on the Pennsylvania Supreme Court, three of those five face “yes or no” retention elections in November at the conclusion of their 10-year terms. Dollars will flow. The public spotlight will shine. And Pennsylvania’s voters will go to the polls knowing that their vote actually matters.
Linda Greenhouse, the recipient of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008 and was a contributing Opinion writer from 2009 to 2021.
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