Three state Supreme Court justices offered a glimpse behind their chambers doors Monday as they seek voters' approval in November to serve second terms.
Judges in Pennsylvania are elected to 10-year terms in partisan elections. Once in office, however, they stand for retention in "yes" or "no" referenda to serve subsequent terms.
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Justices Christine Donohue, Kevin Dougherty and David Wecht were elected as Democrats in 2015 in a historic race where three of the seven Supreme Court seats were up for grabs for the first time in the court's 300-year history.
This year, the same trio of justices are up for retention. In a "fireside chat" led by WHYY-FM's Cherri Gregg, Donohue, Dougherty and Wecht spoke about judicial independence, the court's deliberative process and and to dispel the idea that their decisions are politically driven.
The event was co-sponsored by the court access group Pennsylvanians for Modern Courts, the government watchdog Committee of Seventy and the Pennsylvania League of Women Voters.
In the last decade the Supreme Court has issued pivotal opinions allowing school districts to sue the governor and General Assembly over the state's education funding system, allowing mail ballots with inconsequential flaws to be counted and upheld state emergency orders closing businesses to slow the spread of COVID-19.
"The independence of the judiciary is an amazing piece of our Pennsylvania Constitution," Dougherty said. "It's a sacred part of our constitution that, for some reason, people believe should just be a suggestion."
As the third branch of government, the judiciary provides a check and balance on the legislative and executive branches to ensure that neither abuses its authority, Dougherty noted. Wecht added its roles include interpreting the state constitution, which defines and limits the powers of the other two branches.
"The constitution is the fundamental law and is superior to a legislative enactment. So there are times when the court must stand against the popular will … So it's not for the faint hearted," Wecht said.
And Donohue said the court often delves into the English and colonial law that preceded the state constitution to determine what its authors intended.
"For many years, the Supreme Court did not spend a whole lot of time on Pennsylvania constitutional rights, and it is, needless to say, one of the most important things that we do," she said.
One such case is the appeal of Derick Lee, a Pittsburgh man serving a life sentence without the possibility of parole for his accomplice's killing of a victim in a robbery. The Supreme Court agreed to hear the case, which hinges on whether the Pennsylvania Constitution provides greater protection from cruel punishments than the 8th Amendment to the U.S. Constitution. The court's decision could give 1,100 people serving life without parole sentences hope for freedom.
The unprecedented 2015 election flipped the court to a 5-2 majority of justices who were elected as Democrats. Donohue, Dougherty and Wecht joined now-Chief Justice Debra Todd and then-Chief Justice Max Baer.
Justice Daniel McCaffrey's election as a Democrat in 2023, maintained the majority despite outside spending by conservatives attacking him. With more than $19.5 million spent by McCaffery, his Republican opponent, Montgomery County Judge Carolyn Carluccio, and third parties, the election shattered the previous record in 2015.
This year, according to Meta and Google, the Republican State Leadership Committee has already spent at least $91,000 on digital ads urging Republicans to vote by mail to defeat "radical liberal judges … trying to secure another decade of power."
Gregg asked the justices how they ensure that their rulings are not political and are grounded in the law and constitution.
Donohue replied that the courts are required to follow rules to interpret the law and ascertain the intent of lawmakers, sometimes decades or centuries after a law was enacted. In interpreting the constitution, the courts look at how its provisions have been applied through history and how earlier laws might have informed its framers.
"Our personal views, our political views, our religious views, are left on the wayside. They have absolutely nothing to do with the manner in which we can decide cases, and do decide cases," Donohue said.
Dougherty said that's borne out in the 10 years of decisions each justice has authored and voted on, noting that they have taken stances that could be considered adverse to political or ideological labels.
"The constitution required us to run as a partisan, but the moment we were elected, when we put that black robe on, we hung up that partisan title," he said.
Wecht added that the seven justices never think of a Democratic or a Republican outcome in a case. Rather, they apply the law as they interpret it, following predictable rules.
"We have no choice but to apply the law that the legislature has given us, and any one of us, or all of us, or some mix of us may think the result stinks, but it's not our business to decide whether we like the result or not," Wecht said.
In many cases, the court is bound by the doctrine of stare decisis, the Latin phrase meaning "to stand by things decided," which requires judges to look at how the law has developed over time and follow earlier decisions.
Wecht was the subject of a state lawmaker's call to impeach him in 2020 amid allegations that he had overstepped the court's authority by legislating from the bench. Former Rep. Frank Ryan, R-Lebanon, cited Wecht's 2018 decision on congressional redistricting and upholding former Gov. Tom Wolf's COVID-19 emergency orders in 2020.
Gregg asked Wecht what he learned from the redistricting case. Calling the Republican-controlled legislature's map "flamboyantly gerrymandered" and "grossly improper," Wecht said he found out the people behind such an impropriety are going to be "very upset" when a court strikes it down.
"It's a fundamental principle in our system that if one seeks to recuse a jurist, one makes a motion in advance of the proceeding, one doesn't wait for the result to see if one likes the result, and then complain that maybe that person shouldn't have participated," he said.
Describing the court's day-to-day work, Dougherty said the court is unique in the commonwealth because it decides what cases it wants to hear, and it accepts only 5% to 8% of the requests that come before it. There are exceptions such as death penalty cases and Gaming Act appeals that the court must hear.
Each justice reviews about 300 requests a year and author memoranda recommending whether to accept or deny them. Their colleagues don't always agree, so there are often responses before a decision whether to consider a case is finally made, Dougherty said.
Meanwhile, the justices must review case files for the cases they have agreed to consider and write opinions for those they have heard. That's on top of the administrative tasks of attorney discipline or appointing people to serve on committees that draft court rules and procedures.
"So each day, every day, it's a product of intellectual jumping jacks, and each chamber permits itself to determine what it finds to be the priority at that particular moment," Dougherty said.
Audio from the court's oral arguments, where attorneys for each side present their cases, are broadcast on the Pennsylvania Cable Network and on the court's YouTube channel. Donohue said those arguments give listeners, including the justices themselves, a strong indication of what each justice is thinking about a case.
Immediately after arguments, the justices have an administrative session behind closed doors where they take preliminary votes on the cases they have just heard. Sometimes the justices discuss the case to narrow the issues on which they will focus.
Each case is assigned to a justice to author a preliminary majority opinion that is circulated among his or her colleagues. Then, any dissenting opinions are drafted and the majority responds, Donohue said.
"That's where the debate happens," she said, adding that sometimes there are discussions between the justices to fine tune the majority ruling to accommodate disagreements on points of law. In others individual justices write concurring opinions in which they explain how they would have decided the case differently to reach the same result as the majority.
"Votes can change. Alterations can happen in opinions. And really, the public sees the tip of the iceberg," Wecht said. "Maybe a better metaphor than an iceberg is a water polo game where you see the ball up here, but you don't see the kicking and gouging going on underneath the surface."
PCN will rebroadcast the discussion at 9 a.m. Wednesday, 8:30 p.m. Thursday and 10:30 a.m. Sunday.
Pennsylvania Capital-Star is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Pennsylvania Capital-Star maintains editorial independence. Contact Editor Tim Lambert for questions: info@penncapital-star.com.