Resolute Square

War On The Courts

Published:March 1, 2023
State Supreme Courts are a target of the Right. They've succeeded in packing them with cronies in Ohio and North Carolina. Next target: Wisconsin in April.

*Published with the generous permission of David Pepper. Read and watch more of his work here.

By David Pepper

When the other side shows you what they care about the most—and what they’re most afraid of—you better take the hint.

And then act on it. 

And those attacking democracy have shown that one thing they are deathly afraid of are independent courts, which offer a robust check on the legislatures the far right has hijacked through extreme gerrymandering and where they do so much of their damage.

Nowhere was that fear made more clear than in Ohio and North Carolina after voters elected independent Supreme Courts in 2016 and 2020. In both states, those legislatures immediately altered the rules of electing justices—adding party labels to judicial candidates and manipulating the ballot order in order to make judicial elections as partisan as all other elections in their states. And, as they’d hoped, the GOP candidates won in both states in 2022 under their new rules.

In the interim, as they awaited the arrival of those friendly justices, both legislatures worked feverishly to evade the orders of those independent courts. In Ohio, they simply defied Court orders for a year while some talked of impeaching the Chief Justice for ruling against them on key gerrymandering cases. In North Carolina, legislative leaders were so eager to evade that Court’s rulings that they advanced the rogue “independent state legislature” theory to the US Supreme Court. (No surprise, Ohio has joined in). Both states want the US Supreme Court to block state courts from reviewing state legislative actions on elections and districting matters, a lawless and anti-democratic theory that would leave these rigged statehouses accountable to no one. Even if they lose this audacious case, they still will have achieved their primary goal of delaying things while they killed off the independence of their respective courts.

Now that it’s flipped to GOP control, the North Carolina Court has already voted to re-hear key political cases in which the prior court ruled against the GOP legislature. And back in Ohio, a bombshell story in the Cincinnati Enquirer Sunday revealed years of personal favors being traded between the Governor, his family, and his recent appointee to the Supreme Court. It’s disturbing cronyism on any level, but far worse when it’s between a new Justice and the sitting Governor, one of the most regular litigants before that Court. 

Bottom line: at the first whiff that these courts were emerging as independent checks on rigged legislatures, those legislatures declared war against them…and, sadly, succeeded. The entire sequence has corrupted the rule of law in both states; checks and balances are as absent as they are in non-democracies such as Hungary. And outcomes on everything from gerrymandering to abortion access are undoubtedly going to be reversed as a result.

While this bleak reality must be confronted, I’m not writing this simply to lament. The attack on independent courts underscores just how important lapdog courts are to the far right’s broader attack on democracy and how vital independent courts are to a healthy democracy. 

Which brings me to Wisconsin

On April 4, there’s an election for the Wisconsin Supreme Court that could flip the majority, making the Court independent of the nation’s most gerrymandered legislature. The new Court could soon rule on critical cases from abortion access to drop boxes to gerrymandering. Needless to say, these decisions will impact the 2024 elections in a major way, not to mention the health and well-being of millions of women and families.

More broadly, the outcome of this race will impact the health of democracy itself in a pivotal state.

In the coming weeks, we have the chance to regain momentum lost in North Carolina and Ohio last November. If you can help secure an independent Court in Wisconsin in any way, please do so.

You can start by supporting the Democratic candidate. Here’s her website.

*published with the generous permission of David Pepper. Find his newsletter here.