State supreme courts have seldom loomed larger than they do now. These courts of last resort in each state have enormous power over our lives, and with the U.S. Supreme Court’s decisions to overturn Roe v. Wade and greenlight partisan gerrymandering, their state counterparts offer progressives one of the last and most important venues for protecting abortion rights, voting rights, and much else.
In many states, the justices who serve on these courts are elected by the people, in races that often receive little attention. But they warrant close consideration, especially because conservative interests have spent years deploying massive resources to reshape state courts to their liking while liberals have all too often neglected them. That pattern, fortunately, has shown signs of changing, with many supreme court races in a number of states this year emerging as major battlegrounds. Below, we preview the top contests on the November ballot. You can find a complete list of all races at Ballotpedia.
Illinois (4-3 Democratic)
Despite Illinois’ unambiguous blue-state status, the state’s high court is closely divided because of the unusual way it picks its members. While nearly all states that elect supreme court justices do so statewide, Illinois is one of just four that uses district-level elections—and until last year, those maps had not been redrawn since they were first put in place in the 1960s. As a result, they’d grown badly malapportioned, yielding underpopulated rural districts in downstate Illinois that improperly benefitted conservatives at the expense of the Democratic-leaning Chicago suburbs.
Democrats in the legislature finally rectified matters by enacting a new map that better balanced each district’s population and, in so doing, flipped the 3rd District from a 51-47 victory for Donald Trump to a seat Joe Biden would have won 53-45. There, Republican Justice Michael Burke (who had originally been appointed to the significantly overpopulated 2nd District, prior to the remap) faces Democrat Mary O'Brien, a judge on the state’s Appellate Court.
The now-open 2nd, meanwhile, features a face-off between Democrat Elizabeth Rochford, a trial court judge in Lake County, and Republican Mark Curran, a former Lake County sheriff who badly lost a bid for Senate in 2020; this district would have backed Biden 56-42, little different from its previous makeup.
Both sides are spending many millions, though Democrats appear to have the financial edge. Republicans would need to win both races to flip the court. (Democratic Chief Justice Mary Jane Theis in Chicago's deep-blue 1st District also faces a retention election, where voters are given the option solely of saying whether an incumbent should stay in office, but judges very seldom lose such races.) All candidates are running for 10-year terms and will appear on the ballot with party labels.
Michigan (4-3 Democratic)
Michigan Democrats managed to wrest control of the state Supreme Court from Republicans in 2020 when Elizabeth Welch flipped an open GOP-held seat, but just two years later, they now have to defend that majority—though there’s a chance they could expand it, too. Two incumbents, Democrat Richard Bernstein and Republican Brian Zahra, are seeking eight-year terms, and both face opposition: Democrats are running state Rep. Kyra Harris Bolden, while Republicans have put forth attorney Paul Hudson.
Uniquely, Supreme Court elections in Michigan are officially nonpartisan in general elections, but candidates are nominated by political parties at summertime conventions, so there’s no doubt about anyone’s affiliation. Also unusually, all candidates (including one Libertarian) will appear on a single ballot; voters get to cast two votes each, and the top two vote-earners both win. But while the ballot doesn’t feature party labels, both Bernstein and Zahra will be identified with the phrase “Justice of the Supreme Court,” offering a potentially powerful assist.
A Bernstein loss would hand the court back to the GOP, while a defeat for Zahra would give Democrats a larger 5-2 majority. One crucial case that will come before the Supreme Court soon concerns Michigan’s 1931 abortion ban, which a lower-court judge recently struck down for violating the state constitution. A Republican majority on the high court could, however, reverse that ruling.
Montana
Unlike the other courts on this list, the Montana Supreme Court elects its members in officially nonpartisan elections, though the stakes are still eminently clear. The current court’s ideological balance is somewhat tricky to pin down, but observers generally agree that three justices are liberal-leaning, two are conservatives, and two are often swing votes. Overall, though, the court has been a moderating force; earlier this year, for instance, it unanimously upheld a decision by a lower court that temporarily barred three anti-abortion laws passed by Republicans from taking effect and likewise rejected a GOP attempt to gerrymander the high court itself in a 5-2 ruling.
That’s precisely why Republicans are targeting it now. Two incumbents are up for an eight-year term in November: conservative Jim Rice, who doesn’t face a competitive re-election, and swing Justice Ingrid Gustafson, who does. Gustafson, who was originally appointed to fill a vacancy by former Democratic Gov. Steve Bullock in 2017, is being challenged by attorney James Brown, a Republican who was elected to the state’s Public Service Commission in 2020. Gustafson has emphasized nonpartisanship, while Brown called the U.S. Supreme Court’s Dobbs ruling one of the “major decisions for liberty.”
The battle has seen “unprecedented” levels of spending, as a recent Montana Public Radio analysis put it, though Brown’s allies have enjoyed a sizable edge. The partisan lines have been sharp: Republican Gov. Greg Gianforte is backing Brown, even though, as MTPR notes, “A sitting governor has not endorsed a Supreme Court candidate in recent memory,” and the Republican State Leadership Committee has poured in at least half a million dollars into attack ads against Gustafson. Meanwhile, Planned Parenthood, state Democrats, and trial lawyers are supporting the incumbent, though bipartisanship is not completely dead, as she also earned an endorsement from former Republican Gov. Mark Racicot, a one-time RNC chair.
A victory for Brown would not upend the court, but it would be the first step toward Republicans seizing control of it. Gustafson voted with the majority in the case that found the GOP’s plan to switch from electing the court statewide to electing it by district—districts that Republican lawmakers themselves would get to draw—violated the state constitution, so if she’s replaced, Republicans would get one step closer to locking in a permanent majority.
North Carolina (4-3 Democratic)
North Carolina Democrats suffered a major setback in 2020 when they narrowly lost two seats on the state Supreme Court, including the position of chief justice by just 400 votes, reducing their 6-1 majority to a 4-3 edge. Now Republicans have two opportunities to retake the court. Justice Sam Ervin is seeking a second term and faces Republican Trey Allen, an attorney and professor, while Democrats are also defending an open seat. There, Democrat Lucy Inman is running against Republican Richard Dietz; both currently serve on the state’s Court of Appeals.
In recent years, the Supreme Court has repeatedly blocked a never-ending stream of Republican efforts to suppress the vote and rig maps in their favor. Most notably, the court’s Democratic majority rejected the GOP’s new congressional map as an illegal partisan gerrymander last year, putting in place a much fairer set of districts. That of course infuriated Republicans, who, if they retake the court, would be all but certain to overturn that precedent and once again greenlight gerrymandered lines.
If Republicans run the table, they could reduce Democrats to just two seats on the court, giving themselves a 5-2 advantage. Candidates are seeking eight-year terms, though if Ervin wins, he’d only be eligible to serve for five more years because he’d hit the mandatory retirement age of 72 in 2027. All contenders will be identified by party after Republicans decided to make the ballot partisan once again following their loss of control over the court in 2016.
Ohio (4-3 Republican)
Democrats unexpectedly whittled down the GOP’s majority on the Ohio Supreme Court in 2020 when Jennifer Brunner defeated a Republican incumbent by a surprisingly wide 55-45 margin, following two Democratic pickups in 2018. That prompted Republicans in the legislature to enact a major change to judicial elections in an effort to prevent the same thing from happening again. Until this year, Ohio used the same system as Michigan: partisan judicial nominations followed by a nonpartisan general election. Now, though, candidates will appear on the ballot with party labels, since Republicans believe Brunner benefitted from not having the word “Democratic” after her name.
Undeterred, Brunner is running for the position of chief justice, which is open because the current occupant, moderate Republican Maureen O’Connor, has reached the mandatory retirement age of 70. That race will pit Brunner against a fellow associate justice, Republican Sharon Kennedy, though it won’t affect the court’s balance of power because the loser gets to remain in their current post while the winner’s seat would be filled by gubernatorial appointment, and Republican Gov. Mike DeWine is the overwhelming favorite to win a second term.
Still, the post of chief justice is a powerful one: The holder is considered the superintendent of the state's entire court system and, among other things, is solely responsible for assigning temporary judges to fill absences, deciding motions to disqualify lower court judges, and even appointing judges to the Court of Claims, which hears all lawsuits against the state of Ohio.
The battleground for control of the court instead centers on two Republican justices who are seeking six-year terms: Pat DeWine (the governor’s son) and Pat Fischer. The younger DeWine will face off against Marilyn Zayas while Fischer is running against Terri Jamison; both Democrats serve on the state’s Court of Appeals. Should either challenger prevail, Democrats would secure a 4-3 advantage—their first majority in decades—regardless of what happens in the race for chief justice.
We’ll be covering all of these contests—and every other key race in the 2022 midterms—during our Nov. 8 election night liveblog at Daily Kos Elections, so please join us then.