No longer above the fray, state supreme courts pulled into overtly political conflicts

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It’s Saturday, Oct. 14, and we’d like to welcome you to the weekly State and Local Roundup. There’s plenty to keep tabs on, with an analysis of Utah’s claim that TikTok is “baiting” children into addictive and unhealthy social media habits, the latest on green energy initiatives, wolves moving into Colorado and a new report on state tax revenues from licensed cannabis sales. But first we will take a look at the increasingly high-stakes fights over control of state supreme courts.

State supreme courts have never been free of politics. But not too long ago, they were viewed as second-tier prizes among political operatives, mostly the province of trial lawyers and chambers of commerce. Now, though, those courts have emerged as a top-tier target for party leaders, often considered the key to unlocking control of state legislatures, gubernatorial mansions and even Congress.

Perhaps the most blatant example of the change has been in Wisconsin, where Assembly Speaker Robin Vos, a Republican, has threatened to impeach a brand new Supreme Court justice depending on how she rules on a redistricting lawsuit.

Wisconsin’s Republican-drawn map for state legislative districts has given the GOP an outsize advantage in keeping control of the legislature, even as Democrats win most statewide races. Redrawing the maps could jeopardize Republicans’ control of the legislature, which they have used to stymie liberal policies and curb the power of Democratic Gov. Tony Evers. The Wisconsin Supreme Court chose the Republican plan in 2022, after the U.S. Supreme Court rejected an alternative proposed by Evers.

But Wisconsin Democrats challenged the GOP maps again in August, days after Justice Janet Protasiewicz was sworn in and liberals gained a 4-3 majority on the nominally nonpartisan court. During the campaign, Protasiewicz called the Republican maps “rigged” and “unfair.”

Vos and other Republican leaders have raised the prospect of impeaching Protasiewicz, because she did not recuse herself from the redistricting case. The Assembly speaker consulted with several retired high court judges who advised him not to pursue impeachment. But Vos this week said the legislature could still impeach Protasiewicz, depending on how she ruled on the redistricting lawsuit.

“She has said she can be an independent jurist,” Vos said. “If we see that the contributions that the Democratic Party made to her expecting a result [a ruling in their favor on the redistricting case], that will certainly be something that we have to keep on the table because she will not live up to her oath.”

Other states have shown how a switch in control of the supreme courts can shape the local political landscape. In April, the North Carolina Supreme Court overturned a previous ruling that would have made the legislature redraw its districts. The court flipped from a Democratic majority to Republican control just a few months earlier. As a result, GOP lawmakers could keep their existing maps. (Last month, Democratic Gov. Roy Cooper appointed Allison Riggs, who had worked as an election law attorney to block Republican redistricting plans, to the high court.)

In New York, Democrats hoped a new member of the state’s top court, the Court of Appeals, could mean new hope for their bid to redraw the state’s congressional maps. The author of the decision to uphold those maps retired. But her replacement, Judge Caitlin Halligan, announced Friday she would recuse herself from the high-profile case because of personal conflict of interest. An appeals court judge will replace her on the case, adding another level of uncertainty that could affect the partisan balance of the narrowly divided U.S. House.

Michael Nelson, a Penn State political science professor who studies state supreme courts, said state high courts have been increasingly drawn into overtly political conflicts. The U.S. Supreme Court’s decision to overturn Roe v. Wade means many state high courts will determine abortion policy. Plus, the 2020 presidential race and fights over COVID-19 policies often led to fights before state supreme courts.

But the transformation has been decades in the making, he said. Voters kicked three members of the Iowa Supreme Court off the bench in 2009, after the high court unanimously approved same-sex marriage in the state. In 2018, the West Virginia House of Delegates impeached the entire state supreme court, although courts effectively stopped the impeachment trials.

In fact, Karl Rove, President George W. Bush’s political advisor, “came to prominence as a political operative in the South by realizing that it’s a lot cheaper to flip three or four seats on a state supreme court than to have to flip 20 or 30 seats in a state legislature, but both institutions have a lot of policy power,” Nelson said. “Ever since then, these elections have been steadily increasing in prominence.”

But Rove’s campaigns in places like Alabama and Texas focused on installing business-friendly conservatives on high courts at a time when Democrats controlled state governments there. The ads often attacked judges for their handling of criminal cases, implying that they were too lenient.

These days, though, the campaigns are more straightforward, as candidates and their ads discuss hot-button issues likely to come before the court, such as redistricting, COVID-19 policies and abortion, Nelson said.

Even in states where supreme court fights don’t make front-page news, lawmakers have changed the process by which those judges are chosen, Nelson said. In Iowa, for example, Gov. Kim Reynolds gained more power in picking judges, and, as a result, the high court reversed course on whether the state constitution included a right to an abortion.

“They’ve made a lot of incremental changes,” Nelson said. “Those are hard issues that people don’t pay attention to, and they’re not super transparent for journalists to cover and understand. But those are the kinds of things that, over the long term, are really going to change the composition of these courts.”

The increased partisanship on supreme courts could affect which kinds of people are even interested in serving in those roles, he added. It could be less attractive for a highly paid lawyer to seek a judgeship, if it means a pay cut, intense media coverage and deciding hot-button issues that are likely to upset half the state. That’s a far different prospect than in the past, when lawyers figured they might get some scrutiny during the campaign, but then settle into a job of determining Fourth Amendment rules for dog sniffs of vehicles or interpreting obscure statutes. “It means that the sort of people who want to be judges are people who are much more political,” Nelson said.

For the public, the political tug-of-war over control of the courts could reverberate far beyond the partisan fights, especially as new majorities feel empowered to overturn prior decisions.

“That sort of instability has a lot of consequences,” he said. “Businesses rely on the stability of law when deciding what contracts they’re going to make. Police officers rely on the stability of law to determine what an appropriate search is when they’re pulling people over for traffic stops. There are really wide-ranging consequences for that lack of predictability.”

Keep reading as there’s more news to use below, and make sure to come back here for the week’s highlights. If you don’t already and would prefer to get it in your inbox, you can subscribe to this newsletter here. We’ll see you next week.

News to Use

Trends, Common Challenges, Cool Ideas, FYIs and Notable Events

• SOCIAL MEDIA: Utah sues TikTok. Utah became the latest state Tuesday to file a lawsuit against TikTok, alleging the company is “baiting” children into addictive and unhealthy social media habits. TikTok lures children into hours of social media use, misrepresents the app’s safety and deceptively portrays itself as independent of its Chinese parent company, ByteDance, Utah claims in the lawsuit. Arkansas and Indiana have filed similar lawsuits while the U.S. Supreme Court prepares to decide whether state attempts to regulate social media platforms such as Facebook, X and TikTok violate the U.S. Constitution.
   
• VOTING: North Carolina is sued over new elections bill. The Democratic National Committee and the North Carolina Democratic Party sued the state in federal court over an elections law passed Tuesday, arguing that it will lead to voter suppression. The groups allege that several portions of the bill violate the U.S. Constitution and the federal Voting Rights Act. The Republican legislature overrode Democratic Gov. Roy Cooper’s veto to pass the bill, which eliminates the three-day grace period for receiving absentee ballots, bans private money for election administration and empowers partisan poll observers to watch the voting process.
   
• ENERGY: One utility’s plan to flip the electricity industry’s business model. Many electric utilities are putting up lots of new power lines as they rely more on renewable energy and try to make grids more resilient. But a Vermont utility is proposing a very different approach: It wants to install batteries at most homes to make sure its customers never go without electricity. The company, Green Mountain Power, proposed buying batteries, burying power lines and strengthening overhead cables in a filing with state regulators on Monday. It said its plan would be cheaper than building a lot of new lines and power plants. It’s a big departure from how U.S. utilities normally do business, reports The New York Times.
   
• ECONOMIC DEVELOPMENT: Washington sees potential in offshore wind. Gov. Jay Inslee on Tuesday announced a new effort to make Washington a preferred location for producing offshore turbine components. Under the Blue Wind Supply Chain Initiative, the state is partnering with public and private sector leaders, labor groups and research institutions to become a hub for offshore wind manufacturing. Inslee said the effort could create an “enormous” number of skilled, union jobs in the state. A number of coastal states, including Oregon, are already working with the federal government on siting offshore projects, though Washington is not currently one of them.
   
• WILDLIFE: Gray wolves are coming back to Colorado. Oregon will provide the first gray wolves for Colorado’s 2020 voter-mandated reintroduction of the species, wildlife officials announced late last week after a months-long search for a state willing to provide the canine before a Dec. 31 deadline. Colorado Parks and Wildlife staff between December and March will capture up to 10 wolves in northeastern Oregon using helicopters and spotter planes. Captured animals would be flown or trucked down to western Colorado for release as soon as possible. 
   
• FOOD: Iowa joins court challenge of Massachusetts’ pork law. The state is joining a coalition of pork producers in suing Massachusetts for its law that bans the sale of pork that doesn’t meet strict hog-confinement requirements. Massachusetts’ law is similar to one in California that the U.S. Supreme Court recently upheld that restricts the sale of pork in that state. But the Massachusetts law goes a step further by also prohibiting the shipment of noncompliant pork through the state. That provision of the law means that if Iowa-produced pork doesn’t meet Massachusetts’ standards for hog confinements, it not only can’t be sold in Massachusetts, it can’t be transported through Massachusetts to other states.
   
• CANNABIS: States cash in on marijuana tax revenue. Between July 2021 and the end of 2022, states collected more than $5.7 billion from licensed cannabis sales, according to a recent report from the U.S. Census Bureau. In the first report on state-level marijuana tax revenue data, Census found taxes varied depending on the size of individual state markets and how long they’ve been open for business. For example, Washington state and Colorado—the first two states to legalize nonmedical marijuana—collected the second- and third-most tax revenue ($818.5 million and $648.1 million, respectively) during the period included. California’s massive market, meanwhile, produced more than $1.4 billion in sales tax revenue over a year and a half, while revenue in New York—where only about two dozen retailers have opened statewide since sales began in December 2022—totaled just $27.9 million.
   
• HEALTH AND PUBLIC SAFETY: California bans “excited delirium” diagnosis. Democratic Gov. Gavin Newsom signed a bill Oct. 8 to prohibit coroners, medical examiners, physicians or physician assistants from listing excited delirium on a person’s death certificate or in an autopsy report. The term has been around for decades but has been used increasingly over the past 15 years to explain how a person experiencing severe agitation can die suddenly through no fault of the police. Starting in January, law enforcement will no longer be allowed to use the term to describe a person’s behavior in any incident report, and testimony that refers to excited delirium won’t be allowed in civil court. Even though the new law makes California the first state to no longer recognize excited delirium as a medical diagnosis, several national medical associations already discredited it.

Picture of the Week

Last week, Wisconsin lawmakers introduced legislation aimed at preventing restaurants from mislabeling artificial syrup as the real deal. “One of my pet peeves is when I go to a restaurant and I ask, ‘Do you have real maple syrup?’ And they say yes,” Wisconsin Sen. Kelda Roys, one of the bill’s sponsors, told the Wisconsin Examiner. “And then I order based on that information, and then you can just see when they’re walking towards the table, that’s not real maple syrup, and I’m just like, ‘I should have ordered the omelet.’” Under the bill, “public eating places” won’t be allowed to identify a product as maple syrup on labels or menus unless it is actually maple syrup. Wisconsin already has similar provisions preventing restaurant-goers from being served margarine instead of butter or honey with added sweeteners. The bill doesn’t include any enforcement mechanisms or penalties for restaurants.

Government in Numbers

5,000+

The number of guns travelers have attempted to bring onboard in their carry-on luggage that has been caught at security checkpoints nationwide so far this year, according to the Transportation Security Administration. The agency said it’s on its way to breaking last year’s record of guns being caught across the country. This week, BWI Marshall Airport in Baltimore, Maryland, broke the record set last year. So far, 36 guns have been caught this year. Passengers are allowed to bring firearms inside their checked luggage, but it has to be unloaded and packed in a hard, TSA-approved case. Those who are caught with a gun at an airport checkpoint could look at civil penalties of up to $15,000.