As now-Supreme Court Justice Amy Coney Barrett explained in her Senate confirmation hearing, the black robes of a judge show that “justice is blind. We [justices] all address the law the same, and I think it shows that once we put it on, we are standing united symbolically, speaking in the name of the law. Not speaking for ourselves as individuals.”
If that’s the case, Pennsylvania’s Supreme Court justices might consider a wardrobe change. The institution has lately behaved like the legal department of the state’s Democratic Party.
This is especially true as the court could loom large as a mass of hundreds of thousands of votes are being counted in Pennsylvania post-election.
To understand how the Commonwealth’s highest court became a Democratic policy backstop, go back to 2015 and the most expensive judicial race in U.S. history. Seven candidates raised $15.8 million, with $9 million going to the three Democrats: Kevin Dougherty, David Wecht, and Christine Donohue.
The result: a 5-2 majority for the Democrats.
Pennsylvania’s Supreme Court justices might consider a wardrobe change. The institution has lately behaved like the legal department of the state’s Democratic Party.
In the years since, Pennsylvanians have seen the Court side time and again with Democrats, in increasingly brazen displays of partisanship. Nor has the Court covered itself in glory in the age of COVID-19, from rejecting requests to lift the state’s coronavirus business closure order when doing so would benefit Republicans, to granting Democrat Gov. Tom Wolf essentially unchecked emergency powers.
But the most blatantly partisan examples surround the 2020 elections.
In mid-September, the court “significantly altered how the state’s election will run on Nov. 3,” approving satellite drop boxes and deciding that ballots arriving after Election Day would be counted — contrary to very clear, existing state statute. A month later, in a 7-0 decision, the court ruled counties must accept mail-in and absentee ballots even if signatures on the outer envelope do not match those on file, though ballots not enclosed in proper envelopes could be rejected.
In the thirty-page October opinion, Justice Debra Todd, a Democrat, writes: “We conclude that the Election Code does not authorize or require county election boards to reject absentee or mail-in ballots during the canvassing process based on an analysis of a voter’s signature on the ‘declaration’ contained on the official ballot return envelope for the absentee or mail-in ballot.”
In one important passage, Todd also wrote, “We decline to read a signature comparison requirement into the plain and unambiguous language of the election code.”
But the court showed no such restraint in its September decision to extend the deadline for mail-in ballots, despite Justice Max Baer’s observation, “There is no ambiguity regarding the deadline set by the General Assembly … a completed mail-in ballot must be received in the office of the county board of elections no later than eight o’clock P.M. on the day of the primary or election.”
It is exceedingly difficult to escape the conclusion that the Democrat-controlled Supreme Court of Pennsylvania chooses to read into the code when it may help Democrats politically and chooses not to do so when it may help Republicans.
Justice Baer is also a Democrat.
Given 1.8 million registered Democrats in Pennsylvania have requested mail-in ballots in 2020 (relative to approximately 700,000 registered Republicans), it is exceedingly difficult to escape the conclusion that the Democrat-controlled Supreme Court of Pennsylvania chooses to read into the code when it may help Democrats politically and chooses not to do so when it may help Republicans.
Nowhere will this have greater consequences than in this week’s national election. But the consequences won’t end there. As The Atlantic noted in 2015:
Perhaps most significantly, the makeup of the court plays a key role in determining the control of the state legislature, and the composition of the state’s congressional delegation. The justices together appoint the fifth member of the Legislative Reapportionment Commission, which is otherwise split 2-2 between Republicans and Democrats. That group is responsible for redrawing election maps after the census—it next takes place in 2020. With Democrats now in control, Pennsylvania could end up with a final districting plan more favorable to the party.
Given the state Supreme Court’s track record, Pennsylvanians should expect more outright help for Democrats when it comes to redrawing congressional districts after the 2020 census. It will be fascinating to see if Democrats continue their anti-gerrymandering efforts then.
And what about the future? As the Harrisburg Patriot-News reported in 2015, “Although justices run partisan campaigns in their initial election, they face a nonpartisan yes-or-no retention vote every 10 years. Barring a major scandal, justices — and judges in general — are rarely ousted.”
There is a longstanding sentiment in the American psyche that judges, begrudgingly acknowledged to be ordinary human beings, should act with superhuman impartiality with regard to the law. The black robes speak to this.
But blatantly political decision-making from the state’s highest court demolishes that sentiment. It erodes the faith of everyday Pennsylvanians in their government. It reduces those robes to rags.
Bill Rivers was deputy press secretary for U.S. Senator Pat Toomey and speechwriter for Secretary of Defense Jim Mattis at the Pentagon. He holds an MPA from the University of Pennsylvania where he studied as a Truman Scholar.