Special Comment on Retention
Hi, everyone —
I’m writing today to ask those of you in Pennsylvania to vote YES to retain Justices Christine Donohue, Kevin Dougherty, and David Wecht, and Judges Alice Beck Dubow and Michael Wojcik, in Tuesday’s election.
tl;dr: The short version of this message is that judges should be retained if they are faithfully attempting to interpret and apply the law, and all of these Justices and Judges pass that test easily.
Here's the long (okay, really long) version.
Maybe the most central principle of American and Pennsylvanian republicanism is that nobody is above the law. Republic translates roughly to the “public thing” – a government of the people, their intent expressed in the law. The republic, in other words, is the rule of law. Without the rule of law, you don’t have rights – at least not if they are unpopular among those who happen to be in power at the time.
The principle was perhaps first really won in the year 1215 in England at the Battle of Runnymede, when rebellious nobles forced King John to confirm that he, too, was subject to the law and could not violate their liberties. Although judges began as essentially advisors to a sovereign English monarch, over the centuries, they gradually gained independent authority. And in 1701, the English Act of Settlement formally recognized that authority, providing that judges would continue to hold their offices not “at the sovereign’s pleasure,” but, rather, “during good behavior” – that is, unless they were impeached. The idea was that the law must be followed, and judges must be free to follow it without fear of royal punishment.
The concept of judicial independence gained even stronger force in the fledgling United States. One of the Declaration of Independence’s grievances identified that King George III had violated judicial independence by “ma[king] Judges dependent on his Will alone, for their Tenure of their Offices, and the Amount and Payment of their Salaries.” And the Constitution created three separate and coequal branches of government: a legislature elected by the people to make law, an executive to enforce it, and a judiciary to interpret it and apply it in cases. It created a framework of checks and balances, including that the legislature’s conduct and the executive’s conduct could be challenged in the courts if it violated the Constitution or the law. Like the Act of Settlement, the Constitution provided that judges would serve for life “during good behavior” – again, unless they were impeached for high crimes and misdemeanors.
Why? The Framers knew that the legislative and executive branches are instruments of political will. Without an independent judicial branch focused on faithfully interpreting and applying the law, judges would have to answer to politics, and the Constitution and the law would only apply when the outcome was popular. And if the Constitution and the law only apply when the outcome is popular, there is no Constitution, and there is no law. There is only what is popular at a given moment.
Pennsylvania started out on the same trajectory. Colonial Pennsylvania’s judges served at the King’s, and at the colonial governor’s, pleasure, no doubt an inspiration for the Declaration of Independence’s complaint. As the American Revolution broke out, Pennsylvania took measures to create judicial independence – giving judges fixed, long, and, for a time, lifetime tenure, subject to removal for misbehavior in office. But in the 19th century, populists rolled the reform back. In ensuing constitutions, judges were to be elected and their tenure decreased.
In 1968, Pennsylvania adopted the current framework as an attempt to further foster judicial independence: partisan election, ten-year terms, and nonpartisan “retention” elections in which candidates do not run as members of a political party and do not face opposing candidates running as members of political parties, but instead face a “yes or no” vote for another term. Reformers hoped that the measure would mean that once judges were in office, they could faithfully interpret the law, not worry about the prospect of seeking partisan support or facing partisan ire in an upcoming election.
They were partly right. For years, sitting judges standing for retention did not have to raise much money, did not have to compete in partisan primaries, and could generally count on the fact that they were not identified as partisans to protect them from opposing partisans in the general election. They could also count on the fact that the voters who cared about judicial elections knew about, and appreciated, the value of judicial independence: that judges need room to do their jobs without worrying about what is popular.
In short, it is a fundamental American and Pennsylvanian value that judges who are faithfully attempting to interpret and apply the law should continue to serve regardless of whether their decisions are popular. Because if they are making decisions based on the law, of course some of them will be unpopular. And if they are making decisions based on what is popular, there is no law.
Against this backdrop, Justices Donohue, Dougherty, and Wecht, and Judges Dubow and Wojcik, should be retained. I have spent the bulk of my professional life thinking about the Pennsylvania appellate courts. Shortly after law school, I accepted a position as a clerk to a different Justice of the Pennsylvania Supreme Court, which, during my first few years there, had several Justices mired in scandal. When I began, one Justice was being prosecuted for alleged campaign finance law violations, and she was ultimately convicted and left the Court. Later, it was revealed that two other Justices were involved in sending racially, sexually, and otherwise insensitive emails in a group of people including attorneys who appeared before the Court. They, too, left the Court.
Shortly thereafter, in 2015, Justices Donohue, Dougherty, and Wecht were elected to the Court, and Judges Dubow and Wojcik were elected to the lower intermediate appellate courts. In the course of my work, I had the opportunity to see their intelligence, their temperament, and their commitment to interpreting and applying the law regardless of its popularity. These qualities have perhaps been no more on display than in the Justices’ frequent interpretation of the Pennsylvania Constitution, which requires them to delve deeply into the text, structure, history, and prior interpretation of provisions that have gone essentially dormant in some cases for centuries. This task requires countless hours of research, incredibly thoughtful consideration, and hundreds of pages of writing. The Justices in this area are at the vanguard of the American legal tradition when it comes to protecting Pennsylvanians’ individual rights. And although Judges Dubow and Wojcik are not charged with that task (the Supreme Court generally decides unaddressed legal issues, while the intermediate courts generally apply the law to particular cases), their work evinces equal intellectuality and commitment to the rule of law, deciding thousands of cases on two of the nation’s busiest courts. In short, Justices Donohue, Dougherty, and Wecht, and Judges Dubow and Wojcik, capably and faithfully attempt to interpret and apply the law to the cases before them. They should be retained.
Unlike in prior years, however, this year the Justices and Judges cannot count on the fact that they were not identified as partisans to protect them from opposing partisans in the general election. Pennsylvania’s richest billionaire, among other reactionary activists, has funded a “vote no” campaign attacking the Justices and, for the sake of simplicity I suppose, Judges Dubow and Wojcik as well. Whether because the Justices’ decisions have held politicians and major corporations accountable to individual Pennsylvanians’ rights, or out of simple partisanship, the partisans have spent millions on ads and mailers and social media, and nearly all of them center on baseless and misleading descriptions of the Justices’ decisions.
Most of the claims are designed to rile up partisans who don’t like allegedly liberal outcomes of some decisions. One of the more remarkable claims is that the Justices “made millions while closing down Pennsylvania businesses during COVID,” suggesting that the Justices have corruptly profited off of coronavirus-related shutdowns. That claim in particular refers to the Justices’ annual salaries over ten years (far lower than what any of them would make in private practice), which has no relationship to those shutdowns, which the Legislature authorized and then-Governor Wolf ordered, but the hope is that voters will just see the ad and get a vague sense of corruption. Another is that the Justices “let Bill Cosby free.” That claim omits that in Cosby’s sexual assault case, the local, elected District Attorney entered into a deal in which he agreed not to prosecute Cosby in exchange for his willingness to testify in a civil case, and the Court’s only decision was that the District Attorney’s Office was required to stand by its word. It also omits that Justice Dougherty did not join that decision. The hope here is that voters will just see the ad and get a vague sense that the Justices are somehow too protective of sexual offenders.
The activists are also engaged in an attempt to mislead partisans of a more liberal political alignment. Some mailers sent to Democratic voters refer to “term limits” and imply that a “no” vote actually concerns the conservative United States Supreme Court. Obviously, it doesn’t. Others claim that it would “end gerrymandering,” when, in actuality, the Justices have already issued a decision ending gerrymandering in the Commonwealth of Pennsylvania.
These craven partisan attacks on sitting judges, if successful, could have disastrous effects. First, as a practical matter, if the Justices and Judges are not retained, they will leave the bench in two months. They will take their work on pending cases, their experience that could have been brought to bear in future cases, and their staff members and clerks, many of whom have decades of knowledge and experience in serving Pennsylvania judges and courts of all partisan orientations. That alone is a tremendous loss for the quality of our law.
And if that is not enough, if the Justices and Judges are not retained, there will be a four-member Supreme Court for a period of nearly two years and a decreased complement on the intermediate appellate courts as well. (Although Governor Shapiro could conceivably appoint temporary Justices, his appointment would have to be confirmed by the Republican-led Senate, and that is a highly unlikely prospect.) That means that each existing Justice’s and Judge’s chambers will have to do more work with the same resources. In other words, a smaller court is a considerably less efficient court. And more concerning, the new complements of Judges raise the prospect of tied decisions that leave the law in areas of major public importance in a state of chaos, with no one to provide a definitive resolution. I worked for a four-member Supreme Court for a period of a few months, which was hard. A four-member Court for a period of two years is inconceivable.
But perhaps the most dangerous result is that we will have crossed a new boundary in our politics that would roll back the clock by nearly a century: we will have had partisan activists plot and execute a successful coup on judicial independence and the rule of law, which is to say, on all of our rights. Its success will lead to more partisan retention elections – for example, in 2027 and 2029, when two Justices elected as Republicans will stand for retention – and it will put sitting judges in a position of having to make decisions thinking less about the law, and more about politics. That is bad for us all.
Humanity has spent centuries fighting for a system that holds everyone accountable to the law, in which every individual has rights. We cannot, and should not, give it away to partisan control.
Please vote YES – and encourage your friends and colleagues to do the same – to preserve the independence of Pennsylvania’s courts, the rule of law, and all of our rights.
Yours,
CW
