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HARRISBURG — Control of the Pennsylvania Supreme Court is on the ballot this year, with three Democratic justices up for retention elections.
These yes-or-no elections are normally sleepy and almost never result in a justice being forced off the court. But Republican operatives, who have chafed at the Democratic-majority court’s decisions for a decade, say that with a flip within reach, they’re getting ready for an expensive political fight.
Judges on all three of Pennsylvania’s statewide appellate courts — the Supreme, Superior, and Commonwealth Courts — are elected in partisan, statewide elections and serve 10-year terms. The number of terms they can serve is unlimited, though they must retire at age 75.
Judges get successive terms via a retention election. These elections are not partisan, and don’t involve an opposing candidate; voters are simply asked to say yes or no to giving a judge another decade on the bench. If the vote is yes, the judge stays on. If it is no, the governor can appoint a temporary replacement subject to the approval of the state Senate. An election for a replacement to serve a full 10-year term is then held in the next odd year.
Appellate judges’ decisions have an enormous impact on state politics, and on Pennsylvanians’ daily lives.
In the past 10 years, members of the state Supreme Court’s Democratic majority have overseen and intervened in the commonwealth’s congressional and legislative redistricting; allowed a case challenging the state’s education funding system to go to trial; upheld COVID-19 mediation efforts; and backstopped the state’s voting laws against a slew of conservative challenges, most notably from Donald Trump’s 2020 campaign.
They’ve also made a number of quieter moves that have inflamed opposition from business interests, including loosening restrictions on where a plaintiff can file costly malpractice lawsuits and opening the door to gig workers becoming full employees rather than independent contractors.
The seven-member court currently has five justices elected as Democrats and two as Republicans. The three Democratic state Supreme Court justices on the ballot in November are Christine Donohue, Kevin Dougherty, and David Wecht.
The lower appellate courts also have an election apiece. Superior Court Judge Alice Dubow is up for retention, as is Commonwealth Court Judge Michael Wojcik. Both are Democrats.
GOP seeks ‘decade-long impact’
Combined with the increased politicization the judiciary has seen during the Trump era, this handful of usually obscure, low-turnout elections is set to attract major attention and funding from both parties, according to political operatives.
Republicans in particular see it as a huge opportunity.
“This has been circled on my calendar for a long time,” veteran GOP political consultant Christopher Nicholas told Spotlight PA.
Open elections for seats on Pennsylvania appeals courts have increasingly become expensive affairs, attracting millions of dollars from trial lawyers, labor unions, business interests, and megadonors within and outside the state.
Retention elections so far have been unaffected by this trend. But nine months out, that appears to be on track to change.
In a recent memo, the Republican State Leadership Committee, a national group that helps finance state races, highlighted Pennsylvania’s retention elections, noting those justices would oversee state and federal electoral maps during the next redistricting cycle.
The high court routinely intervenes to commission a congressional map if Pennsylvania’s legislature and governor deadlock, and it almost invariably steps in to choose a nonelected tiebreaker that draws state legislative maps.
“That’s why the RSLC’s [Judicial Fairness Initiative] is already committed to spending seven-figures in 2025 and raising even more resources is necessary to win and could make a decade-long impact,” the memo said.
One GOP activist, Scott Presler, said that he has already hired 23 staffers in the state and expects to add more to register voters and raise awareness on the retention races. Presler is among Trump’s most vocal supporters in the commonwealth.
“This is a political election, and this is going to be an election about justice and accountability,” Presler told Spotlight PA and Votebeat.
On the Democratic side, state party officials have begun sending out fundraising emails highlighting the races. One from late January said 2025 was “one of the most important election years for our future.”
“This is our chance to put up another roadblock to MAGA extremism in our state,” the email added.
State Sen. Sharif Street of Philadelphia, chair of the Pennsylvania Democratic Party, told Spotlight PA that justices would “have the resources that are needed to win, and we understand what that's going to require.”
Philadelphia’s powerful trial bar has also said it will back the retention of the three justices. Andrew Duffy, president of the Philadelphia Trial Lawyers Association, told Spotlight PA that Donohue, Wecht, and Dougherty have “unquestionably demonstrated that they are more than worthy of a vote for retention.” The group’s membership regularly pours millions of dollars into statewide elections.
The political spotlight on these races is troubling some court watchers, such as Deborah Gross, president of Pennsylvanians for Modern Courts, a Philadelphia nonprofit that educates citizens about the judiciary and advocates for an appointed, rather than an elected judiciary.
“I’m scared,” Gross told Spotlight PA. “I’m really scared.”
Retention elections are meant to be a nonpartisan referendum on a judge's performance, Gross said, which is why the party affiliation the judge was originally elected under does not appear on the ballot.
“There’s going to be a lot of money spent,” she added. “I think unfortunately what is going to happen is partisan campaign advertising that is going to be topic-based as opposed to merit-based.”
A unique election process
Campaigning can be difficult for judges seeking retention because the Code of Judicial Conduct sets strict rules on what they can do, in order to maintain their impartiality. While they are allowed to talk about their approach to the law, they’re barred from discussing specific cases before them, or definitively saying how’d they rule on any given topic.
“Judges can’t really talk,” Gross said. “They can’t say ‘I’m going to decide this way.’ … So many of them don’t really speak on decisions they handed down.”
That can make campaigning against retention a simple prospect.
“This is a political consultant's dream, because your message is just one thing, and that's ‘No,’” Nicholas said.
If Republicans are successful in defeating the three Democrats, it could provide an opportunity for them to flip control of the court in open elections in 2027. Those contests will be partisan races in which Democratic and Republican judges go head to head for the seats.
Judges normally don’t come close to losing retention, with most winning a new term by 30-plus percentage points. Just one statewide judge has ever lost retention — Supreme Court Justice Russell Nigro in 2005.
Tim Potts, an activist who campaigned against Nigro’s retention, said it all started when the Supreme Court upheld the state’s 2004 slot machine legalization, which the legislature approved over the span of 48 hours by inserting the language into a semi-related bill.
Activists opposed to gambling, like Potts, argued that the rapid timeline and means violated the state constitution, which places strict rules on how bills pass the General Assembly.
After the state Supreme Court upheld the law, Potts said he and a grassroots network of good-government groups and activists began to organize against two retention elections that year.
“We were all just using our own individual networks,” Potts said.
Then lawmakers used a similar process to pass a sizable pay hike for the legislature, executive, and judiciary, which flared smoldering grassroots skepticism into a wildfire of opposition to the commonwealth’s political establishment. From there, Potts said, “it was easy.”
They spent little money, relying on news coverage and word of mouth. They also weren’t just after Nigro. Another justice, Sandra Schultz Newman, was also up for a new term that year. But while Nigro lost by a 2-percentage point margin, Newman won by about 8 percentage points.
Potts doesn’t have a good explanation for the different outcomes.
“I couldn't make a better case against one than the other,” he said.
Newman didn’t reply to a request for comment, but Nigro told Spotlight PA that he thought he lost for a number of reasons, including opposition from the Philadelphia political machine — he performed slightly worse than Newman in the commonwealth’s biggest city.
As for the pay raise, which he said he had nothing to do with, he thought that the public’s anger was misplaced and stoked by the press.
Voters, Nigro said, were mad at the pay raise and “voted accordingly. And they blamed me because Justice Newman and I were the only ones on the ballot.”
Looking back, he said he has no regrets. But he added, “I would have liked it better if 80% of voters turned out instead of 16%.”
