To the great detriment of our judicial system, a majority of states put their judges up for a vote—many in retention elections, which allow voters to periodically expel from the bench judges whose rulings they oppose. Retention elections were used most infamously in 2010, when conservatives led a successful campaign to oust three Iowa Supreme Court justices who overturned the state’s same-sex marriage ban—and, before that, California Supreme Court justices who restricted capital punishment. Now anti-abortion activists are using the same strategy in an effort to remove state Supreme Court justices in Kansas and Alaska who voted in favor of abortion rights. The tactic remains underhanded and nasty; unfortunately, it may also prove to be effective.
Kansas is an abortion rights battleground. In 2015, the state banned the safest and most common procedure used to abort pre-viable fetuses in the second trimester. A state judge blocked the law from taking effect, holding that the Kansas Constitution protects a woman’s right to terminate her pregnancy before viability. An appeals court affirmed that ruling; the issue is now pending for the state’s relatively independent Supreme Court. This election cycle, anti-abortion activists have launched a campaign urging voters to vote against those judges who ruled in favor of abortion rights—and to vote in favor of retaining judges who ruled against abortion rights. The campaign’s goal is to rid the Kansas judiciary of judges whose judicial philosophies include support for women’s bodily autonomy, including the right to terminate a pregnancy.
A similar crusade is under way in Alaska. In July, the state Supreme Court struck down a law requiring minors to notify their parents before obtaining an abortion, holding that it violated the state constitution’s guarantee of equal protection. Two justices who voted to invalidate the parental notification law face retention elections this year. Alaska Family Council, a conservative organization that opposes abortion rights, is imploring voters to remove both justices from the bench, insisting that their “judicial philosophies” render them unfit for service.
Nonpartisan groups like the Alaska Judicial Council argue that judges shouldn’t be removed from the bench based on political disagreements with their votes. That position flows from the vision of the judiciary espoused by the framers of the Constitution, who hoped that judges would remain independent from the political process and therefore serve as a check on its excesses. But in Alaska and Kansas today, those notions of impartial justice have been tossed out the window. To anti-abortion groups, a vote in favor of reproductive rights disqualifies judges from the bench altogether. That is an utter perversion of the judiciary’s role in American democracy. But it also consistent with the modern Republican Party’s platform, which increasingly views the courts as little more than a scullion of the party in power.
