Author: Gillian McGoldrick

Voters will decide whether the Pennsylvania Supreme Court should be transformed for years to come when they are asked next month whether they should retain three justices for another 10-year term or oust them.

The justices — Justices Christine Donohue, Kevin Dougherty, and David Wecht — were each elected as Democrats in 2015 during a transitional period for the court when Democrats took a majority, the first time so many seats were open at one time, in part due to resignations of disgraced former justices. Since then, the three justices have played decisive roles on the 5-2 liberal majority of Pennsylvania’s highest court.

Their decisions have had great impacts on the lives of the state’s residents, including rulings on whose mail ballots should be counted under the law, whether cities can set their own gun laws, and shoring up the state’s constitutional rights for gender equality.

Now the justices will appear individually on Pennsylvania ballots, where voters will be asked “yes” or “no” on whether each should be retained for another 10-year term.

Retention elections in Pennsylvania traditionally attract little attention and little money. But Republicans view this as an opportunity to overhaul the court, which has become an even more critical battleground in the Donald Trump era as state-level courts hold sway over everything from abortion rights to congressional redistricting.

The GOP has spent millions to try to oust the three justices, while Democrats have spent even more to try to keep them on the bench. As of Friday, Republicans had spent or reserved nearly $2.5 million in ad buys, while Democrats had spent more than $7 million.

The Inquirer spoke with the justices about their last 10 years on the bench, what it has been like to campaign in a hyper-partisan environment for what is intended to be a nonpartisan election, and more.

Kevin Dougherty

A small group of volunteers gathered in a Northeast Philadelphia parking lot on a gloomy Saturday afternoon in early September to knock on doors and urge residents to retain the current members of the Pennsylvania Supreme Court.

Milling among the volunteers was Dougherty. Despite having been on the ballot for local or state office three times, Dougherty, of Philadelphia, never knocked on voters’ doors until this year.

And he was disgusted by the fact that it was necessary.

“Judges shouldn’t have to canvass,” Dougherty said several times over the course of the afternoon.

He then proceeded to walk a Northeast Philly neighborhood alongside his son, State Rep. Sean Dougherty, a first-term Democrat who represents the area, and a family friend.

Kevin Dougherty, 63, is from South Philadelphia and hails from one of the most well-known families in Philadelphia politics. His brother, John “Johnny Doc” Dougherty, is the once-powerful former leader of IBEW Local 98. John Dougherty was convicted in 2023 of embezzling funds from the union.

Before running for the Pennsylvania Supreme Court, Dougherty spent nearly 15 years on the Common Pleas Court bench in Philadelphia, with much of that time spent serving in the family division.

As a Supreme Court justice, Dougherty has highlighted his work on the autism in courts initiative as a key accomplishment. This program works to educate judges about the particular challenges people with autism spectrum disorder may face when dealing with the justice system, and has grown further into sensory-friendly courtrooms in more than a dozen counties.

The program, Dougherty said, was inspired by his own experience on the bench when a child stood in his courtroom for a delinquency case showing “all the signs of an incorrigible person.” Then, Dougherty said, the child’s mother pulled him aside and told him her son was on the autism spectrum.

“It was like a punch in my mouth because I had never been exposed,” Dougherty said. “You’re only ignorant once.”

Dougherty said he self-educated and began working in Philadelphia to reform the way the court interacts with individuals with autism and brought those efforts to a statewide focus as a justice.

“You need to make the system fair,” Dougherty said.

On the court, Dougherty has often sided with the liberal majority. He recently wrote the majority opinion in a case that allowed local governments to use zoning law to limit where gun ranges could be located. In oral arguments, when attorneys get a chance to argue their cases before the Supreme Court’s seven justices, Dougherty often presses lawyers to refine their arguments.

Christine Donohue

Donohue is often the first justice to ask questions during oral arguments.

Her quick interjections are because of her 27 years as a trial attorney prior to her career on the bench, she said. She cannot help but be inordinately prepared when she puts on her judicial robes and sits on the state’s highest court.

“Thoroughness is one of my ‘things,’” she said, with a laugh.

Donohue, 72, would be able to serve for only two years of another 10-year term. But it wasn’t even a question to her whether she should step aside sooner. She believes she has fulfilled her duty as a justice, and she is prepared to do so until she hits the voter-set maximum age for a justice, 75.

Donohue authored the court’s ruling last year that signaled some members of the court are prepared to find that the Pennsylvania Constitution secures the right to an abortion. But less discussed from that same opinion, Donohue said, she is proud to have shored up the state’s Equal Rights Amendment.

Pennsylvania was the first state in the nation to amend its constitution to enshrine that every person has equal rights that cannot be “denied or abridged” because of an individual’s sex in 1971, and the first state to show support for amending the U.S. Constitution to guarantee the same.

But a 1984 ruling by the state Supreme Court “diluted” the ERA in Pennsylvania, Donohue said. It wasn’t until the justices decided the Allegheny Reproductive Health case 40 years later that the court revisited the state’s Equal Rights Amendment to make it “perfectly clear that a biological difference cannot serve as the basis for a denial or an abridgment of a right,” she said.

“To me, I’m very proud of many of the decisions I’ve been able to be involved with, but that one really sort of sets the record straight,” Donohue said.

Outside her legal work on the state Supreme Court, she has been an advocate to offer more young lawyers the opportunity to try a case before a jury, which has become less and less frequent in recent years. Ensuring that the next generation of lawyers knows how to try a case before a jury is critical to guaranteeing the right to a fair trial, and would prevent a potential competency gap for future lawyers.

David Wecht

Like many of the justices on the Pennsylvania Supreme Court, Wecht spends much of his free time thinking about legal questions or ethical dilemmas. Or going on walks and listening to podcasts that deal with the same issues. (He recommends Amarica’s Constitution by Yale Law professor Akhil Amar or any of the podcasts by Jeffrey Rosen at the National Constitution Center, among others.)

He works from his chambers in Pittsburgh each day, unless the court is at one of the state’s many satellite courtrooms for oral arguments. There are times when he is in his chambers reading and writing all day long, which he described as “very, very fun, and very, very interesting and exciting.”

“The work is interesting. It is varied, It is never stagnant. We deal with all areas of the law,” Wecht said. “I’m very grateful that the voters gave me this job 10 years ago, and I hope they’ll see fit to provide me an additional term.”

Wecht is a true student of the law and said he enjoys probing attorneys’ arguments and the back-and-forth between justices on the bench.

He sees his role on the court as to decide cases. “Nothing grander, and nothing more,” he said.

He and the whole court, he said, operate under a “philosophy of judicial restraint.”

The court’s liberal majority has faced criticism from Republicans during the last 10 years — especially during the COVID-19 pandemic — for decisions they claimed were made by an “activist court.”

But those rulings, Wecht said, were the justices’ best attempts at deciding what a law passed by the General Assembly means when the lawmakers left it ambiguous, or their best attempt to understand what the framers of the state constitution intended, even if he doesn’t agree with it.

“It’s not our business whether we like them,” he said.

Republican groups have attempted to mislead voters in mailers, Wecht has said, about the justices’ role in a 2018 decision that found Pennsylvania’s congressional maps were unconstitutionally gerrymandered. The GOP groups have had similarly misleading ads about the court’s actions on abortion and voting rights, even recently invoking the anti-Trump “No Kings” language to try to sway voters to vote “no.”

Wecht is a professor at Duquesne School of Law and the University of Pittsburgh, where he has been teaching for years. He is also a visiting professor at Reichman University in Israel each year, and regularly teaches continuing legal education courses for attorneys, which are courses that all lawyers must complete on an annual basis to maintain their active attorney’s license in Pennsylvania.