The death of Justice Ruth Bader Ginsburg, less than 50 days before the 2020 presidential election, set off a battle over how quickly her seat could get filled, with Republicans anxious to lock in a judge that represents their values. And President Donald Trump’s boast during the first presidential debate that he has filled more judicial seats than anyone was a good reminder that Trump’s influence on the courts goes well beyond the Supreme Court. But the politicization of the judiciary goes well beyond Trump and extends to the entire federal court system, and includes Pennsylvania’s state courts.
Earlier this month, a 41-year-old Trump-appointed judge ruled that Gov. Tom Wolf’s COVID-19 stay-at-home order and business closures were unconstitutional. On Thursday, a federal appeals court temporarily restored the restrictions. Also this month, the Pennsylvania Supreme Court ruled that “naked ballots” (ballots that don’t come in a secrecy envelope) can be thrown away by elected officials during the count. With these kind of decisions, federal and state courts shape the laws that govern everyday life — but also raise the stakes when the neutrality of the judiciary is questioned.
As a battleground state, Pennsylvania is already at the heart of legal disputes over voting and, potentially, efforts to discredit election results through the courts. But not all cases will necessarily go to the Supreme Court.
According to Mary Levy, professor at the Temple University Beasley School of Law, federal appeals courts are highly influential. While the Supreme Court has the discretion to accept or reject cases, federal appeals courts are required to hear cases brought in front of them, and as such, most issues are settled at the appeals court level.
One in five judges in the Pennsylvania federal district courts and the Third Circuit Court of Appeals was appointed by Trump — 15 district and four appeals appointees. No Democratic president — at least going back to John F. Kennedy — has appointed so many judges in Pennsylvania their first term.
Further underscoring how politics intersect the judiciary, the judges in Pennsylvania’s state court system are elected. A Republican proposal to amend the Pennsylvania Constitution to create judicial districts for appellate court elections, which, unlike trial courts, are held statewide, has narrowly passed the state Senate this summer and could be on the ballot as early as the May 2021 primary election. The Pennsylvania Budget and Policy Center calls the proposal “judicial gerrymandering.”
The primary sponsor of the bill, State Rep. Russ Diamond (R., Lebanon), argues that the amendment would increase the geographic diversity on the court.
Currently, five of the seven state Supreme Court justices are Democrats. The balance on the court has changed over time. But by allowing the General Assembly to draw judicial districts, the Republican-controlled legislature could ensure a hold of the judiciary — which among other things will likely need to sign off on new General Assembly and congressional district maps after the 2020 Census counts are finalized.
The upcoming election is about much more than the presidency and legislative seats. It raises questions about the politicization of the entire judiciary — state and federal — as a tool for lawmakers instead of a check on them.