by Lowman S. Henry | January 03, 2023

Judicial philosophy is not something most Americans discuss at the dinner table. It is an esoteric phrase most associate with a political science or law school class. Judicial philosophy does, however, impact the daily lives of everyone sitting around that dinner table.

The judiciary is the most overlooked branch of our federal and state governments. It is a supposedly co-equal branch of government that actually wields more absolute authority than the other two with its highest courts often being the final word on any issue.

At its most basic level judicial philosophy falls into two categories: activists and strict constructionists. Activists believe the judicial branch can use its rulings to make or alter policies enacted through the legislative process or by executive order. Strict constructionists adhere to the original intent of the constitution, be it federal or state, and to the letter of the law.

There are many shades of gray, but judges or justices tend to fall into one of those categories. Generally speaking jurists on the Left of the political spectrum tend to be activist in their rulings, while those on the Right more often adhere to constitutional principles. Thus can judicial philosophy be predictive of how an individual jurist or court as a whole may rule on any given issue.

In addition to wielding virtually unchecked power the judicial branch is also highly insulated. At the federal level judges and justices are given lifetime appointments, at the statewide and county levels judges and justices are elected to lengthy ten-year terms and stand for retention rather than re-election – privileges not accorded to those serving in the executive or legislative branches.

This is done intentionally to remove political influences from the judicial process to the degree that is humanly possible. Most of the time that works relatively well and the overwhelming majority of the men and women who serve on our courts do so in a fair and impartial manner.

A glaring exception is the Pennsylvania Supreme Court which, since the election of three hyper-activist justices in 2015 has evolved into a virtually subsidiary of the state Democratic Party impacting everything from the ability of Pennsylvania’s to go to work or school to control of the state House of Representatives.

Ethical candidates for judicial posts do not overtly campaign on cases that are likely to come before their court. In 2015 then Supreme Court Judicial candidate David Wecht made clear his disdain for the congressional district maps enacted several years earlier by a bi-partisan vote of the state legislature.

Justice Wecht then provided the deciding vote to throw out that map and replace it with one gerrymandered by a California college professor. This ultimately changed the composition of the state’s congressional delegation in favor of the Democrats. In 2022 the court intervened in the congressional redistricting process once again imposing a map by judicial fiat.

But the high court was not finished tilting the electoral playing field. Redrawing of state legislative district maps also took place in 2022.  The court had before it the ability to appoint the fifth member of the redistricting commission who supposedly was to be a “fair and neutral” arbiter. Instead they appointed former Pitt Chancellor Mark Nordenberg who was neither fair nor neutral and produced one of the most highly gerrymandered legislative maps in Pennsylvania history.

The process played out to its intended conclusion in the November 2022 General Election when, running in the new districts, Democrats secured a narrow majority ending over a decade of Republican dominance in the state House.

There have been many other instances of state Supreme Court activism ranging from changing the rules for the election process to back stopping Governor Tom Wolf’s multitude of infringements on individual liberty during the COVID-19 pandemic. Looking ahead, the Pennsylvania Supreme Court is likely going to be weighing in on several issues that will impact the daily lives of every Pennsylvanian including the job crushing Regional Greenhouse Gas Initiative (RGGI), and public education funding.

The death of former Supreme Court Chief Justice Max Baer, who would have reached mandatory retirement age this year, has resulted in a vacancy on the court that will be filled by voters this year. Seats are also up for election to the statewide Superior and Commonwealth courts.

These elections will not receive anywhere near the attention of last year’s high profile races for U.S. Senator and governor. However, their impact on our daily lives is equal to and sometimes greater than that of the other two branches. It will take a bit more effort, but voters should pay attention to the candidates for these seats, learn about their judicial philosophy, and then cast an informed vote.

(Lowman S. Henry is Chairman & CEO of the Lincoln Institute of Public Opinion Research and host of the weekly American Radio Journal and Lincoln Radio Journal. His e-mail address is [email protected].)

 Permission to reprint is granted provided author and affiliation are cited.