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It feels like November in Wisconsin — and not just because of the weather. TV watchers in the Badger State are again being badgered by political ads. Of course, there’s no presidential, Senate or House race happening soon. Instead, all that advertising is for persuading voters in a state judicial election.
According to the website WisPolitics, campaigns and outside groups have so far spent $27 million on the race for a single seat on the Wisconsin Supreme Court — and there are still almost three weeks left before the April 4 election. But this astonishing sum didn’t come out of nowhere. Politicos have increasingly realized that state supreme court elections can be just as important as executive or legislative elections — and their campaigns have gotten a lot more attention as a result.
According to data from the Brennan Center for Justice, $114 million (adjusted for inflation) were spent in state supreme court elections in the 2019-20 cycle, more money than in any of the nine preceding election cycles.
Data isn’t yet available for the 2021-22 cycle, but early indications are that it was expensive too. A total of $15 million was spent on North Carolina’s two Supreme Court races; the campaigns of Ohio’s six Supreme Court candidates dropped at least $5.9 million combined; Montana had the most expensive Supreme Court race in its history. And the trend is continuing in 2023 with Wisconsin. It recently surpassed Illinois’s 2004 Supreme Court election ($24.2 million, adjusted for inflation) for the title of most expensive judicial race in U.S. history.
Why are these elections attracting so much money? As the highest courts in their respective states, state supreme courts can uphold or overturn controversial state laws. Sometimes, because the same party often controls the legislative and executive branch in a state, these courts are the opposition party’s only chance to stop a law it doesn’t like.
For example, in 1999, the Montana Supreme Court found that the Montana Constitution protects the right to an abortion, and struck down a new law restricting the procedure; that decision is likely the only reason abortion remains legal in Montana today. And in 2018, the Pennsylvania Supreme Court struck down the state’s congressional map for being gerrymandered to favor Republicans, which played a significant role in Democrats’ flipping multiple House seats in Pennsylvania that year. That decision would have likely never happened if Democrats hadn’t taken control of the court in the 2015 election.
Until about a decade ago, though, elections for state supreme courts were usually only the province of wonky election nerds and those in the legal profession. But things changed in the early 2010s. “There was a recognition, especially on the right, that these courts were major players in high-profile policy fights,” said Douglas Keith, an expert on state courts at the Brennan Center. Republicans had tremendous success in gubernatorial and state-legislative elections, but the laws they passed still encountered obstacles in state courts. As a result, outside groups like the Republican State Leadership Committee started spending serious money on judicial elections — an effort made easier by the U.S. Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission. According to the Brennan Center, outside groups were responsible for less than 20 percent of the spending in state supreme court elections in every cycle from 2001-02 to 2009-10. But in the 2015-16 cycle, outside groups accounted for 40 percent of the spending in those races.
In recent years, attention to state supreme court elections has risen to a new level. As the 2020 redistricting cycle loomed, conservative and, increasingly, liberal groups zeroed in on state supreme courts as a key battleground. (For example, the National Democratic Redistricting Committee was formed to help Democrats win races that would affect redistricting, including state supreme courts.) Indeed, according to the Brennan Center, 44 percent of outside-group spending in 2019-20 state supreme court elections came from groups on the left, a higher share than in previous years.
Outside groups have played a major role in injecting money into these races, but campaigns for state supreme court have also gotten more explicitly political. Candidates are campaigning less on their legal qualifications and more on their ideological leanings — even taking positions on issues likely to come before the court. In recent years, two states — North Carolina and Ohio — have even switched their state supreme court elections from nonpartisan to partisan contests.
The U.S. Supreme Court has also raised the stakes of state supreme court elections by delegating major legal questions to the states over the past few years. For instance, the 2019 case Rucho v. Common Cause declared that only state, not federal, courts could decide partisan gerrymandering questions. And now that Dobbs v. Jackson Women’s Health Organization has ended the national right to abortion, the power to re-legalize abortion in states that have banned it ultimately rests with state supreme courts. Indeed, abortion and redistricting are both at stake in this year’s Wisconsin Supreme Court election, helping to explain why that race has attracted so much attention.
But while everyone may agree that state supreme court elections are important, not everyone is comfortable with the amount of money being spent. For many, all that money going toward electing a judge raises questions about the judge’s impartiality once they are on the bench. A judge may recuse themself if a case involving a campaign donor comes before the court, but many don’t. That will become only a bigger and bigger problem as the amount of money in these elections increases. Not every state elects judges, but in those that do, elections for the third branch of government are starting to look more and more like the other two: partisan, politicized and swimming in cash.
