Allegations of activist courts seem to be the fashion these days. Sure, the jaw-dropping behavior of the U.S. Supreme Court, from overturning Roe v. Wade to more recently gutting the Voting Rights Act, is all over the news. The latter ruling by the court through a 6-3 ideological split favoring conservatives prompted several states to quickly redraw districts, seeking to eliminate minority-majority districts as soon as this year. Stunning.
Closer to home, however, the Washington State Supreme Court has drawn criticism for its own reliable tilt leftward. The result is that candidates are running for the high court in numbers not seen in decades. Sixteen candidates are running for five seats.
In 2022, incumbents in the three seats up for election drew no challengers. Two years ago, an open seat drew two candidates; the other two, none.
There’s plenty at stake, too. The newly comprised court is likely to consider a challenge to the state Legislature’s new income tax on high earners, which takes effect in 2029. Since the Supreme Court’s 1933 ruling that income was property and must be taxed uniformly, an income tax was considered a nonstarter. In fact, voters repeatedly have rejected the concept at the ballot box.
This new iteration, however, might have legs with the public if a repeal makes the November ballot. The 9.9% income tax exempts the first $1 million in earnings. That makes it, at least for now, a tax on the wealthier among us.
Other major issues are in the offing, not least of which is the Legislature’s miserly hold on what should be public records. The rationale for this legislative secrecy is that some lawmakers are claiming to have “privilege” to withhold documents they don’t want the public to see. So far, legislators have prevailed at the Appeals Court level.
Generally, the state Supreme Court has not been upheld as a defender of open government. In fact, many lower-court judges express concerns about the opacity of the court’s own rule-making process for the judicial system.
As always, the context for the future is the past. In 2024, Ballotpedia, which touts itself as the nation’s nonpartisan digital encyclopedia of American politics, released an analysis of the Washington high court’s rulings — whether they favored progressive or conservative positions as well as contributions to candidates, with the same breakdown.
Covering 2013-2022, the analysis of Washington State Supreme Court candidate campaign finance and court case outcomes found hands down that court case parties and amici filers “coded progressive” were far more successful in favorable rulings (74%) than those coded conservative (14%). Also, progressive money was mostly on the side of winning candidates. The report is fascinating and well worth voters’ scrutiny.
Another valuable perspective is that of former Chief Justice Barbara Madsen, who is retiring after 34 years on the court and first joined it in 1992. Interviewed on TVW’s “Inside Olympia,” she noted a shift in judicial philosophy among her colleagues.
“The best examples are, in recent years, in the arena of juvenile justice; we have gone far beyond what the Legislature has decided, and I think there’s some recognitions by justices that we are into the policy realm at this point,” she told host Austin Jenkins. She has seen the state go from cracking down hard on crime to more concern about social justice, including a sensitivity to young people of color being prosecuted at higher rates.
” … The Legislature has been swinging back but not fast enough for some members of the court,” she said.
Part of that tilt perhaps is that so many judges in Washington state, from the high court to lower courts, were appointed by a succession of Democratic governors, at least initially. Significantly, only three now-sitting justices were first elected to the high court; Govs. Chris Gregoire, Jay Inslee and Bob Ferguson each appointed two others, who then stand for reelection.
Two recent early retirements put Ferguson in the driver’s seat for shaping the court over the next few years. He appointed two of the justices who are running this year to fill unexpired terms, giving them the benefit of quasi-incumbency. Two open races result from incumbent justices opting not to run for reelection.
Only one race — with Chief Justice Debra L. Stephens — has an incumbent elected in her own standing (after her initial 2008 appointment). That’s right, Democratic governors have been putting a thumb on the scale in ostensibly nonpartisan positions, over decades.
“We need more balance in the courts,” said former state Attorney General Rob McKenna. “No one would argue that state courts have much ideological diversity.” The Republican ran unsuccessfully for governor in 2012. He and Phil Talmadge, former justice and democratic senator, are challenging the state income tax.
Through a nonprofit called Full Court Press, he and others are encouraging more of that diversity. Not a PAC nor a campaign that endorses, the 501(c)4 is aimed at providing information and training for judges on how to run campaigns. Generally, the group seeks to help judges with a judicial philosophy that respects the rule of the law, resists ruling from the bench and respects precedent.
The left is taking notice, too. The Northwest Progressive Institute and Foundation has constructed an elegant online visualization of the Supreme Court’s races. It’s a handy tool with links to candidates’ websites, although its far-too-cleverly named URL could be misleading to voters: washingtonsupremecourt.org.
In the preamble, the NWPI&F praises the Washington high court’s national reputation, citing a 2007 California study. No mention of the 2024 Ballotpedia analysis, though.
So, there’s a lot of interest and a lot at stake in Washington’s Supreme Court races this year. Sadly, judicial races, including for statewide justice seats, are relatively low-interest among voters. In fact, voters are less likely to vote for judges.
So here’s your chance. Educate yourselves on these races. While it’s true that judicial candidates should not make promises about how they will rule on specific cases that may come before them, you can ask them to critique other rulings in settled cases.
The Times editorial board will be interviewing the Supreme Court candidates soon and partnering with TVW to share recordings of those across the state. We will be asking questions about judicial philosophy, separation of powers, and the fine line between evaluating legislative intent and setting new policy.
