Mar.20

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Many State Supreme Court Seats Will Be on the Ballot in 2024

State Supreme Courts are potentially just as subject to partisan politics as the U.S. Supreme Court. We have discussed the North Carolina Supreme Court and the Wisconsin Supreme Court recently. In both states, partisan politics has infiltrated the Courts. But as the country gets more and more polarized, politics is entering the mix in other states as well. This movement is encouraged by the fact that in many states, Supreme Court justices are elected and in others they have to undergo a retention election periodically. This means that justices have to campaign. Ultimately that means getting questions like: "Does our state Constitution protect a woman's right to an abortion?" "Beats me" is probably not a good answer. Of course, an alternative way of populating the state Supreme Courts—having the governor appoint justices—doesn't really get the politics out of appointments. Maybe some other way is needed, such as having a judicial commission made up of half Democrats and half Republicans and requiring a two-thirds majority for an appointment.

Currently, quite a few different methods are used to populate the state Supreme Courts. Here is a state-by-state breakdown:

Of the states that have elections for justices, 32 states will have them next year, with 73 seats at stake. Some of these elections don't matter, but in some the balance of power on the court is at stake. Larry Sabato's Crystal Ball has taken a first look at these elections. Here is a table showing who's up where.

Here is a brief rundown of the 32 states:

In these states, there is a (D) or (R) after the candidate's name, so the partisanship is out in the open.

• Alabama: The Alabama Supreme Court has nine justices. All of them are Republicans. This is unlikely to change even though five seats are up in 2024. The chief justice spot is open due to the current chief aging out when he hit 70. Associate Justice Sarah Stewart is running unopposed for the top job.
  
  
• Illinois: The current balance is 5 Democrats and 2 Republicans. The 2024 election won't change control. However, not all votes are along party lines in Illinois. The two seats up in 2024 are both occupied by Black women, one Democrat and one Republican.
  
  
• Louisiana: The Louisiana Supreme Court has seven justices, each one elected from a separate district for a 10-year term. Currently five are Republicans, one is a Democrat, and the chief is an independent. One of the Republicans is up in 2024, but he was unopposed in 2014.
  
  
• North Carolina: Did you think that the principle of judicial review began with Marbury v. Madison? Wrong. It began in North Carolina with Bayard v. Singleton and was later adopted by the U.S. Supreme Court. The Court currently has five Republicans and two Democrats as a result of Republicans flipping two seats in 2022. The balance won't change in 2024 as the only justice up in 2024 is one of the Democrats.
  
  
• Ohio: Until June 2021, judicial elections were nonpartisan. Then the state legislature made them partisan. The Court is currently 4-3 Republican, but two Democrats and a Republican are up in 2024. If the Democrats sweep all three seats, they will take control, otherwise not. Since a Democratic-held Senate seat is up (Sherrod Brown), it's not impossible. But since Ohio is pretty red and Brown tends to outrun other Democrats, it's not too likely either.
  
  
• Texas: The Texas Supreme Court consists of nine justices, all of whom are Republicans. Three of them are up in 2024. Even in the unlikely event of a Democratic sweep, Republicans will keep the majority.
  

These states have nominally nonpartisan elections, but in practice people generally know which party a candidate belongs to. In some cases, candidates previously held a partisan elected office (e.g., attorney general), so there is no question about it. In many states, vacancies are filled by the governor, so the partisanship of these justices is also clear.

• Arkansas: There are seven justices, nominally nonpartisan, but this is Arkansas. Two of them are up in 2024.
  
  
• Georgia: Eight of the nine justices were originally appointed by a Republican governor, four by Nathan Deal and four by Brian Kemp. Count them as Republicans. The ninth one, John Ellington, won a nonpartisan election. Two of the Republicans, including the chief, are up in 2024.
  
  
• Idaho: While most states have seven or nine justices, Idaho has only five, Four are Republicans appointed by former governor Butch Otter. The other, Robyn Brody, won a nonpartisan election in 2017. One of the Republicans is up in 2024.
  
  
• Kentucky: Six of the seven justices were elected by district in nonpartisan elections. One was appointed by former governor Steve Beshear, father of the current governor. The chief is up next year. Republicans in the state legislature don't like the Court, as it is too independent for their taste. They may try to change it, although since the current governor is a Democrat, they are unlikely to give the governor the power to appoint all justices.
  
  
• Michigan: Now we come to a swing court consisting of four Democrats and three Republicans. Michigan's system is unusual. Candidates nominated by the parties all run on the same ballot but without party labels. The top two finishers are elected. One Democratic woman and one Republican man are up in 2024, so a lot of money will be spent on these races as the balance is, well, in the balance.
  
  
• Minnesota: Another swing court here, currently with five Democrats and two Republicans, even though the elections are technically nonpartisan. Two Democrats and both Republicans are up next year. In theory, Republicans could flip the Court if they win all the marbles. Good luck in a presidential year in pretty blue Minnesota, though.
  
  
• Mississippi: The Court consists of nine justices elected by district for 8-year terms. However, if a seat becomes vacant, the governor fills it. Currently six seats were filled by Republican governors and three were filled by nonpartisan election. One Republican appointee is up in 2024.
  
  
• Montana: Each of the seven justices is elected to an 8-year term in a statewide nonpartisan election. If a vacancy occurs, the governor appoints a new justice. Currently there are two Democratic and one Republican appointee on the Court. Two of the nonpartisan justices are up in 2024, including the chief. Both are actually Democrats, though. Republicans want to shrink the Court to get rid of a justice they don't like. No one knows if that is constitutional.
  
  
• Nevada: Three of the seven justices are up in 2024, including the chief, who was appointed by a Republican governor. One of the others is a Democratic appointee and one was elected in a statewide nonpartisan election. All three are women.
  
  
• North Dakota: This is another minicourt, like Idaho's, with five justices. Four are Republican appointees and one won a nonpartisan election. One of the Republican appointees has to stand for election to fill out the rest of his term.
  
  
• Oregon: All seven of the justices were appointed by former Democratic governor Kate Brown. Four of them are up in 2024. In addition, Gov. Tina Kotek (D-OR) will soon appoint a replacement for Adrienne Nelson, who was recently confirmed as a federal judge.
  
  
• Washington: Washington also has an unusual system for electing justices. In every even-numbered year, three justices are elected to a 6-year term in a nonpartisan top-two primary. Currently five of the nine are Democratic appointees who filled vacancies. One of these and two elected justices are up in 2024.
  
  
• West Virginia: Another five-justice state here. The terms are long (12 years) so midterm appointments are common. Currently three of the five justices are Democrats. One Democrat and one Republican are up in 2024, so either party could end up controlling the Court in 2025.
  

In many states, especially in the middle of the country (see map above), the governor appoints justices but they have to stand for election at the next general election. This means they are all running as incumbents and have a record to defend. Unlike a regular election, they don't have an opponent. It is just a straight "yes" or "no" on retaining the justice.

• Alaska: Another five-seater here. Currently there are three Republicans, one independent, and one vacancy on the Court. Two of the Republicans are up for retention in 2024.
  
  
• Arizona: When there is a vacancy, a bipartisan commission makes a list for the governor to choose from. Every six years, each justice must face the voters statewide for a retention election. The retirement age is 70. Currently all seven justices are Republicans, two of whom are women. One of the women and one of the men are up for retention in 2024. No justice has ever lost a retention election in Arizona.
  
  
• Colorado: When there is a vacancy on the seven-member court, a commission submits three names to the governor, who picks one. Then the justice faces a retention election before serving a 10-year term. The justices themselves elect their chief. All seven of the current justices are Democratic appointees. Three of them have retention elections in 2024. No justice has ever lost a retention election in Colorado.
  
  
• Florida: All seven of the justices are Republican appointees, four from Ron DeSantis and three from Charlie Crist back when he was a Republican. One of the two women is up in 2024.
  
  
• Indiana: Yet another five-seater here. All the justices were appointed by Republican governors. Two women, including the chief, and one man are up for retention in 2024.
  
  
• Iowa: All seven justices were appointed by Republicans. One of them faces a retention election next year. Whether the state Constitution protects abortion is an ongoing issue here.
  
  
• Maryland: Although Maryland is a very blue state, six of the seven justices were appointed by former governor Larry Hogan (R). Two of them (including the chief) plus the one Democratic appointee are up for retention next year. Unlike on the other state Supreme Courts, the Maryland justices wear red robes. If the voters want to shift the Court to the left, they can reject the two Republican appointees and let Gov. Wes Moore (D-MD) replace them.
  
  
• Missouri: The Missouri Court is split with four Republicans and three Democrats. One of the Democrats is up in 2024, so the Republicans will retain control, no matter what happens. The Missouri Supreme Court has handled some important cases in the past, including Dred Scott, which was later appealed to the U.S. Supreme Court.
  
  
• Nebraska: Nebraska does things differently from the other states. When there is a vacancy, a nominating commission gives the governor two names to choose from. After 3 years, the appointee has to run for retention. All six associate justices are retained by district. The chief is retained statewide. There is no mandatory retirement age. One interesting fact is that to declare a law unconstitutional, at least five justices must agree. Currently six of the seven are Republicans. The only female Republican appointee is up in 2024.
  
  
• Oklahoma: The Oklahoma Supreme Court handles only civil cases. The Court of Appeals handles criminal cases. The nine-member Court is split with five Republicans and four Democrats, three of whom are up for retention next year. Oklahoma law prohibits justices from campaigning for retention unless there is an active campaign to oppose retention. There is no mandatory retirement age in Oklahoma.
  
  
• South Dakota: The five justices are appointed by district and run for retention in their district. All are Republicans. One of them has a retention election next year.
  
  
• Utah: When a vacancy occurs, a judicial commission makes a list for the governor. After three years, there is a statewide retention election, and after that every 10 years. All the current justices were appointed by Republicans. The chief is up next year.
  
  
• Wyoming: The five justices are appointed by the governor for 8-year terms and are subject to statewide retention elections Currently all are Republicans and three of them are up next year. Chief Kate Fox will hit the mandatory retirement age of 70 in 2025, so she won't stay on the Court long, even if she is retained. The state Constitution says that every adult may make his or her own healthcare decisions. Soon the Court will have to decide whether abortion is healthcare.
  

If you made it all the way through, congratulations. Extra credit if you are not a lawyer. One thing you surely noticed is the enormous variation in how the states work. The courts vary from five to nine members, some justices run in partisan elections, some in nonpartisan elections, and some in retention elections. Some states have districts and some don't. Some states have nominating commissions that produce lists of candidates with the governor required to pick someone on the list and some don't. Some have mandatory retirement ages and some don't. In some states, justices may campaign and in some they may not.

Given the diversity of rules for the state Supreme Courts, that certainly raises the question of why the rules for the U.S. Supreme Court haven't changed since the Constitution was adopted. One can easily imagine an amendment instituting term limits, a mandatory retirement age, or even a periodic retention election in the circuit the justice is in charge of. The states largely didn't buy the idea that once appointed, justices were home free and could do whatever they wanted except commit really serious crimes that might get them impeached. Maybe the states know something the founding parents didn't. (V)