The Pennsylvania Supreme Court Will Likely Be Democratic for the Next 6 Years

Thanks to voters raising the judicial retirement age on Tuesday, the Pa. Supreme Court will probably be majority-Democrat until at least 2022 — and maybe longer.

Pennsylvania Supreme Court

Justices’ seats at the Supreme Court of Pennsylvania | Photo: Ruhrfisch (license)

On Tuesday, voters in Pennsylvania approved a state constitutional amendment that raises the retirement age for judges to 75.

The question was intentionally misleading: A question that explained voters would be raising the retirement age was invalidated but still voted on last year, and was rejected. The one that pretended it was establishing a retirement age passed.

But how the question passed is of less interest than what it means. As I wrote last week, the passage of this constitutional change makes it very likely that the state will have a majority-Democratic Pennsylvania Supreme Court until 2022 now that Democratic justice Max Baer is allowed to serve five more years. Baer will have a retention election next year, but only Russell Nigro has ever lost a judicial retention election in the state (in the wake of Bonusgate).

Barring someone leaving the court for another reason — a conviction, retirement or death, for example — the seven-member Pennsylvania Supreme Court will be Democratic for a while. Dems already have three seats into the 2030s. Thanks to the constitutional amendment that passed, Supreme Court justices in Pennsylvania can now serve until they are 75, with retention votes every 10 years. Last year, Pennsylvania had three open Supreme Court seats. Three Democrats — Christine Donohue, David Wecht and Kevin Dougherty — won the election. Wecht and Dougherty are 54. They can serve until 2037. Another Democratic justice already on the seven-member court, Debra Todd, can now serve until 2032. Democrats just need to replace Baer (who retires in late 2022) or Donahue (who retires in 2027) with a young Democrat to ensure the Supreme Court stays blue until the early 2030s.

Donald Trump will soon be president. Republicans hold the state house and state senate, including a veto-proof supermajority in the senate. They will likely be galvanized to push Trumpish and Republican policies through the legislature. Trump has lots of allies in Pennsylvania outside Philadelphia: The millions of voters, both houses of the legislature, lots of people in Congress, a U.S. Senator. Philadelphia Republican Party leader Joe DeFelice says Trump “will pay a lot of attention” to Philadelphia. He’s probably right. Eighty-two percent of the city voted against him. “I always get even,” Trump writes in the chapter of his book Think Big titled “Revenge.” When someone wrongs you, Trump writes you should fight back in such a way that the person will not mess with you again. Omarosa says Trump already has an enemies list. Why wouldn’t he continue this policy now that he has more power than he’s ever had before?

Pennsylvania has a Democratic governor who is up for re-election in 2018. It will also have a Democratic state Supreme Court, ready to weigh in on all court challenges. We like to think of judges as umpires but they’re just as partisan as any other politicians. A Democratic Supreme Court of Pennsylvania will probably be good for Philadelphia.

There’s a nearly infinite number of issues that could come to the State Supreme Court: local gun restrictions, laws that restrict local law enforcement from searching into a person’s immigration status, local fracking regulations, voter ID, et cetera. Any number of these could come to the state Supreme Court.

The court will also likely have a Democratic majority when redistricting happens after the 2020 census. After the 2000 and 2010 censuses, the state Supreme Court weighed in on court challenges to redistricting. Thanks in part to Republican control of redistricting after both the 2000 and 2010 censuses, the makeup of the state legislature is now heavily Republican. Additionally, the state’s redistricting commission consists of the majority and minority leaders of each party in the house and senate. The fifth member is supposed to be agreed upon by common consensus, but the parties usually cannot make that. When that happens, the Supreme Court makes the appointment.

There are two groups of people to thank for this: Philadelphia trial lawyers, who contributed in large numbers to the three Democratic judicial candidates who won election in 2015. And John Dougherty and his building trades. Yes, the man who had his offices and house raided by the FBI in August is also partly responsible for one of Philadelphia’s best defenses against the Republican majority.

Does this mean we all have to start dressing in 76ers hats, shorts and white-button front shirts? Well, no. But it shows that Philadelphia does have some defense against Trumpism and Republicans, despite Tuesday’s results.

Follow @dhm on Twitter.