Bruce Ledewitz: Our state Supreme Court justices are partly partisan

Special to the Post-Gazette

Sep 8, 2025

4:30 AM

On November 3, 2015, voters changed the makeup of the Pennsylvania Supreme Court by electing three Democratic Party candidates to 10-year terms: Christine Donohue, Kevin Dougherty and David Wecht. This created a 5–2 Democratic majority on the court, which has lasted to this day. Republicans are going to spend a lot of money to try to reverse that result in the upcoming November retention elections for these three Justices.

There have been no major scandals and no justice has been arrested or disciplined in the past 10 years. Given the checkered history of the Pennsylvania Supreme Court, this is no small accomplishment.

But there has been partisanship. The court has favored Democratic Party interests.

Egregious examples

The most egregious examples were the unseemly rush to draw a new congressional district map for the 2018 congressional elections, which looked a lot like aiding the Democrats in retaking the House of Representatives; the unjustified 3-day voting extension in the 2020 presidential election, which the U.S. Supreme Court effectively reversed; upholding Gov. Tom Wolf’s emergency orders during COVID-19, when, by the court’s own analysis, the emergency statute looked to be unconstitutional; and a 2020 decision allowing undated mail-in ballots to be counted in that election. The mail-in ballot litigation continues and may be decided by the U.S. Supreme Court.

Each of these three Justices participated in some of these decisions. But each one also dissented in some. Donohue wrote the dissent against the 3-day voting extension. Dougherty wrote a dissent in the emergency powers case. And Wecht’s separate opinion barred, for a time, counting undated mail-ballots in subsequent elections.

So, it is not accurate to say that these three justices are purely partisan.

The Republican Justices on the court have also voted in partisan ways. Chief Justice Thomas Saylor and Justice Sallie Mundy voted to uphold the grossly gerrymandered congressional map in 2018, including the infamous 7th Congressional District, so grotesquely shaped that its nickname was “Goofy Kicking Donald Duck.”

To be fair, Saylor wrote that the map did seem extreme but that the Democratic majority had not given them enough time to consider whether there was a proper legal standard to overturn the map.

Republican Justices Mundy and Kevin Brobson also voted, in 2022, to overturn mail-in voting in Pennsylvania, which was upheld in a straight party-line vote.

But Saylor and Mundy admirably crossed party lines in 2021, to join Democrats on the court in rejecting as untimely U.S. Rep. Mike Kelly’s disgraceful effort to steal the 2020 election for Donald Trump by challenging all mail-in ballots only after the election was over and Trump had lost. The court unanimously vacated Commonwealth Judge Patricia McCullough’s order temporarily blocking certification of the election results and dismissed the case.

Unspoken views

The voters will have to decide, given this mixed record, whether the three Democrats deserve to be retained.

There are numerous ways in which the court has moved somewhat to the left on criminal procedure, economics and business regulation as well, but clearly it is the political side of the court’s decisions that is inflaming Republicans. That is what will be talked about this fall.

Republicans also charge that the three Democrats, especially Donohue and Wecht, should have recused themselves in the congressional map litigation because they essentially ran for the court in 2015 on the issue of the unfairness of gerrymandering. They did indeed run on the issue, but this charge, at least, is unjustified as a ground for voting against them for retention.

We have a peculiar idea in America that candidates who have strong opinions on legal matters should not voice them clearly when they are seeking judicial office, whether by appointment or by election. 

This view is partly judicial self-interest. Since Robert Bork’s nomination for the U.S. Supreme Court was rejected by the Senate in 1987, after he candidly discussed his views on the law, nominees for the Court from both parties have carefully tried to avoid saying anything substantive about the law.

This reticence has allowed nominees to fudge their views and even mislead senators and the public, as when Brett Kavanaugh called Roe v. Wade settled precedent in his 2018 Senate Hearings only to vote to overrule the case in 2022.

When they were nominated, everyone knew that Neil Gorsuch, Kavanaugh and Amy Barrett opposed abortion. It would have been helpful in evaluating their nominations if the Senate and the public had heard their views. That way, if preserving Roe was important to the vote, there would have been a basis for deciding.

Candid campaigns

That is what Donohue and Wecht did during their campaign for the court in 2015. They candidly told the voters of their concerns about gerrymandering. Obviously, anyone qualified to run for the court would have opinions about gerrymandering, one way or the other. In Pennsylvania, the voters did not have to guess.

The U.S. Supreme Court has held that the First Amendment protects the right of candidates for judicial office to discuss legal matters in a general way. Candor in doing that makes judicial elections better, not worse. That should not cost anyone retention.

Bruce Ledewitz is professor of law emeritus at the Thomas R. Kline School of Law of Duquesne University. He writes every other Monday. The views expressed do not represent those of Duquesne University. His previous article was “Democratic states can save the Constitution without imitating Texas.”

First Published: September 8, 2025, 4:30 a.m.