How Republicans flipped America’s state supreme courts - USA Trending Blog
How Republicans flipped America’s state supreme courts - USA Trending Blog
This story was published in partnership with the Center for Public Integrity, a newsroom that investigates inequality in America.
In 2018, the Iowa Supreme Court ruled that the state constitution included a right to abortion, finding that “nothing could be more fundamental to the notion of liberty.”
Just four years later, the court reversed itself. Iowa’s constitution does not, the justices decided, guarantee a right to abortion after all. That 2018 ruling? It had “a one-sided quality to it,” the new majority found. Iowans could no longer rely on a constitutional protection that existed just hours before.
The day the ruling was issued, staff at a Planned Parenthood clinic on Des Moines’ south side were preparing to perform surgical procedures. But their work ground to a halt. Staff had to inform patients already at the clinic that they couldn’t operate, as they scrambled to understand the decision. “It's devastating,” said Jordawn Williams, the clinic manager. “It's hard to tell patients that, it's hard to see their reaction, it's hard to go through that over and over and over again.”
The state constitution hadn’t changed in the four years between the state Supreme Court’s two rulings. But the justices on the bench had and so had the role state politicians play in putting them there.
One month after the ruling, Chuck Hurley, the chief counsel of influential Iowa conservative group the Family Leader, took the stage before a sold-out convention center crowd. The gathering, which was attended by Republican Gov. Kim Reynolds, U.S. Sen. Chuck Grassley and then-Fox News host Tucker Carlson, was just over the Des Moines River from the Supreme Court. Hurley told the room that “Iowa is on the verge of limiting the barbaric practice of abortion” after the court’s decision. He added, “Governor Reynolds and our legislators played a huge role in that win by changing the way we select judges in Iowa.”
Iowa is not alone. In less than a decade, Republican politicians in eight states have transformed their state supreme courts altering the process by which justices reach the bench, or the size of the court. The moves have pushed the courts to the right or solidified conservative control.
The changes take different forms. North Carolina and Ohio made their judicial elections partisan contests. Arizona and Georgia expanded the number of justices. And Iowa, Idaho, Montana and Utah granted Republican governors greater control over the process of picking justices.
This paved the way for rulings in Iowa and North Carolina that overturned precedents and rulings from just a few years, or months, before.
But while individual rulings have attracted public scrutiny, the changes to the courts have flown under the radar. That’s despite the key role that state courts, which hear 95% of all cases in the U.S., play in American democracy.
“It's hard to flip a whole state legislature. It's really expensive to win a governor's race. But it's not as hard, frankly, to turn over a state supreme court,” said Michael Kang of Northwestern University.
Other Republican-led states have taken notice. In 2023, 15 legislatures considered bills to increase partisan influence in judicial selection, according to a tally by the Brennan Center for Justice at New York University School of Law.
The shifts on state supreme courts resonate far beyond the ornate chambers where justices confer and issue rulings. State constitutions often grant rights that aren’t guaranteed in the U.S. Constitution, and state supreme court justices have the final say on what those are.
Civil rights, taxes, LGBTQ+ rights, labor law, policing and more all of it hangs on which justices take the bench. This year alone, five recently reconstituted state supreme courts have heard or are due to hear cases about abortion restrictions.
What’s underway now is part of a long-term project by conservatives to transform state courts, dating back to the 1980s and efforts such as Republican strategist Karl Rove’s campaign to unseat liberals in Texas. It was supercharged by an Iowa campaign in 2010 to remove three justices who overturned a ban on same-sex marriage.
That election “changed the dynamic. It opened the court up as a site for political gain,” said Rachel Paine Caufield, a professor at Drake University. “In Iowa, they've really done a good job of pinpointing specific changes that very few people would pay attention to, but will be very effective.”
After the changes to the state’s nominating commission, “there's no question that the direction of the court has shifted. It's a much more conservative court,” Caufield added.
That’s true nationwide, too. In 1980, just 30% of state high court justices in the U.S. were Republican, according to data compiled by Stanford researcher Brett Oliver Parker and shared with the Center for Public Integrity. (The analysis excludes justices whose party could not be determined, but keeps those who are independents.) The same data shows that by 2013, that figure crossed 50%.
This year, data from the progressive legal organization Alliance for Justice shows, over 60% of state high court justices are Republican.
That’s sharply out of step with the country’s political leanings. Roughly 30% of Americans told pollsters this year that they consider themselves Republican, with independents and Democrats accounting for the rest.
“All the energy on this issue is on the right,” said law professor Brian Fitzpatrick of Vanderbilt University. He points to data that indicates attorneys lean left; lawyers play a key role in many states where commissions nominate judicial candidates. “It’s the Republicans that are not happy with the status quo,” he said.
In the states examined by Public Integrity where there has been turnover on the bench, the courts added conservatives or replaced Republican moderates with more right-wing justices.
Politicians have come to regard courts less as a check on power than a part of the state’s governing coalition, academics and activists say. In two states, more than ideology binds judges to politicians: Ohio Supreme Court Justice Pat DeWine is the son of Republican Gov. Mike DeWine, and North Carolina Supreme Court Justice Phil Berger Jr. is the son of the state’s most powerful Republican politician, state Senate President Pro Tem Phil Berger.
The decisions made by justices shape the lives of residents in direct, dramatic fashion.
In Arizona, the high court stripped in-state tuition from more than 2,000 students in DACA, the program that protects people brought to the country as children from deportation.
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