The Politics of Judicial Elections, 2021–2022

The Supreme Court’s 2022 decision overturning Roe v. Wade was a watershed moment for state judicial politics. The decision eliminating the federal right to an abortion crystalized the reality that as federal courts limit the protections provided by the U.S. Constitution, state courts will increasingly decide today’s highest-stakes legal fights. Indeed, since Dobbs v. Jackson Women’s Health Organization, advocates have filed 38 cases in 23 states challenging state abortion bans under state law, not to mention major state court challenges related to crucial disputes over redistricting, climate change, and voting laws.

Dobbs also ushered in a new era of state judicial elections. For more than 20 years, the Brennan Center has tracked spending in the 38 states that use elections to select or retain the judges on their highest courts. Since 2000, our Politics of Judicial Elections reports have documented contributions to candidates as well as spending by political parties and interest groups (including the TV ads they run) in state supreme court elections. 

These reports have shown big-money judicial races becoming more frequent and more expensive, and they detail the growing role of opaque interest groups. But in the first election cycle after Dobbs, these races, which have often failed to capture the same interest level as other statewide elections, saw money and attention like never before.

The 2021–2022 cycle of state supreme court elections broke numerous records:

• In total, candidates, interest groups, and political parties spent $100.8 million on state supreme court elections. This was nearly twice the spending in any prior midterm cycle, after adjusting for inflation.
• Outside interest groups spent more than ever before, accounting for $45.7 million — or 45.3 percent — of all money spent, a larger share of the spending than ever before.
• Several states saw their most expensive judicial election cycles ever, including Kentucky, Montana, North Carolina, and Ohio.
• For the first time, interest groups on the left and right spent almost the same amount on supreme court elections, though the balance varied significantly across states.

Looming over each of these records is the 2023 Wisconsin Supreme Court election, which makes some of this spending look quaint by comparison. That race, which took place in April 2023 and is not included in our analysis of the 2022 cycle, flipped the ideological majority on the Wisconsin Supreme Court for the first time in 15 years and attracted $51 million in total spending. That figure is more than double what any election for a single state supreme court seat had seen in the past, all but guaranteeing that the 2023–2024 cycle will be the most expensive ever. The 2022 cycle also does not include the November 2023 Pennsylvania Supreme Court election, which saw at least $22 million in spending and was itself one of the most expensive judicial races in history. Taken together, the Wisconsin and Pennsylvania races confirm that this new era of judicial politics is here to stay. 

State supreme courts have long been important — they typically have the final word on questions of state law and oversee court systems that hear 95 percent of all cases filed in the United States each year. What has changed is that advocates are increasingly bringing their highest-profile cases in state courts, and political officials, interest groups, donors, and the public are becoming more aware of how important these courts are. 

As our democracy increasingly looks to state courts to decide critical legal fights, it is essential that advocates understand the political dynamics shaping those courts and that states work to limit the worst effects of these political pressures. Increased spending paired with a lack of transparency make it difficult for the public to know who is shaping their state’s highest court and why. And weak ethics rules make it impossible for the public and parties in court to ensure that judges are not hearing cases involving their biggest financial supporters. As judicial elections evolve, so must the rules safeguarding those courts’ independence from political pressures and the public’s trust in them.

Spending Breakdown

In 2021–2022, 26 states held elections for 68 seats on their state supreme courts. In total, these contests saw $100.8 million in spending. All spending occurred in 17 states; in 9 states, no candidates, parties, or interest groups reported spending. After adjusting for inflation, this is almost double the previous high-water mark for spending in a midterm cycle of judicial elections (the prior record set in the 2005–2006 cycle was $63.3 million, adjusted for inflation). This cycle was also the second most expensive judicial election cycle ever after the record-setting $112.2 million (adjusted for inflation) spent in the 2020 cycle. Historically, there has been significantly more spending in judicial elections during presidential cycles than midterm cycles, so it is noteworthy that the 2021–2022 midterm cycle came close to breaking that record.  

Of the $100.8 million in total spending, candidates raised $54.7 million in direct contributions. This amount includes $1.1 million in public financing in New Mexico, where all four candidates voluntarily participated in the country’s only active public financing program for judicial candidates. The $55 million candidates raised also includes $3.7 million that Republican and Democratic parties contributed to those candidates, but the only political party to spend significant amounts independently on their own ads or other campaign activities around a judicial election was the Montana Republican Party, which spent approximately $500,000 in that state’s nonpartisan judicial elections. Outside special interest groups spent $45.7 million — the most they have ever spent in a single cycle, even after adjusting for inflation.

The two most expensive races this cycle each took place in Illinois, where Democratic Justices Mary Kay O’Brien and Elizabeth Rochford were elected in competitive partisan elections that cost $14.7 million and $14 million, respectively. Each of these races nearly became the most expensive race for a single state supreme court seat ever — a record once held by a 2006 Illinois Supreme Court election that saw $15 million in spending ($22 million in 2022 dollars), though now held by the 2023 Wisconsin election, which saw more than twice as much spending. 

State supreme court elections attract more money when the partisan or ideological majority on a court is at stake, as was the case in Illinois. Republicans had the chance of comprising a majority on the court for the first time since 1969, but O’Brien and Rochford’s victories established a 5–2 Democratic supermajority. Partisan majorities were also at stake in Ohio and North Carolina, which each saw more money in a single cycle of judicial elections than ever before in their state — $21.1 and $17.7 million, respectively. 

Judicial races are also more likely to attract significant spending when a court has issued, or is poised to issue, especially high-profile or controversial opinions. This was the case in Pennsylvania, where conservatives spent $2.4 million, almost 10 times more than liberal groups, to win a race shrinking the Democratic supermajority on a court that has struck down Republican-drawn legislative maps as unconstitutional partisan gerrymanders and rejected efforts questioning the validity of 2020 election results. 

Similarly, Montana had its most expensive judicial election ever, totaling $4.6 million, the same year the state supreme court rejected the legislature’s subpoenas of internal judicial documents in a dispute that went all the way to the U.S. Supreme Court. And in Kentucky, where the new justices were poised to hear pending challenges related to redistricting and abortion restrictions, the state likely saw its first-ever $1 million race. (We can confidently attribute $800,000 in spending to the race won by Justice Michelle Keller, but incomplete reporting by groups that spent additional money on numerous judicial races in Kentucky makes it difficult to attribute that money to particular races.)

The Role of Outside Groups

Outside interest groups spent $45.7 million on supreme court elections this cycle and accounted for a greater share of the spending than ever before. The U.S. Supreme Court’s 2010 decision in Citizens United v. FEC created an environment in which outside groups can raise and spend money without restraint, so long as they spend that money independently of the candidates they were supporting. Since that decision, direct interest group spending has accounted for at least a quarter of all the money in judicial races, but this cycle, they accounted for almost half of all the money spent in supreme court races. 

The biggest outside spender was the Republican State Leadership Committee (RSLC), a 527 political organization independent of the official Republican Party, which spent an estimated $10 million in total on judicial races, directly and by contributions to others. Since founding its Judicial Fairness Initiative in 2014 to ensure “bold conservative solutions” are not “running into a hard stop with judges,” the RSLC has perennially been the leading spender in judicial elections across the country. This cycle, the RSLC reported spending $4.9 million through its Judicial Fairness Initiative, supporting conservative supreme court candidates in Kentucky, Michigan, Montana, Ohio, and Pennsylvania. But the group also contributed $5.5 million to Good Government Coalition, constituting most of the group’s funds, which in turn funneled $5.1 million to Stop Liberal Judges, the leading spender on state supreme court elections in North Carolina this cycle. The RSLC also gave $300,000 to Judicial Fairness PAC in Texas, which spent money on numerous judicial races to the state’s high court and lower courts, without clearly reporting that spending. While we expect a substantial portion of the group’s spending benefited supreme court candidates, we have not attributed that spending to the supreme court races.  

Even for the RSLC, which has long understood the importance of state judicial races, this spending reflected a new emphasis. The $10 million it spent was almost twice what the group has ever spent in a single cycle on judicial races. As always, it is difficult to say where the RSLC’s judicial election funds came from because the organization reports thousands of donors and spends on hundreds of races, so tying a donor to a particular race is nearly impossible. But tax returns show the group took in at least $2.15 million in 2022 from the Concord Fund, another name for Leonard Leo’s Judicial Crisis Network, which has long funded the RSLC’s judicial election spending, and whose work to shape state supreme courts, along with the U.S. Supreme Court, is well-documented. 

The second biggest spender this cycle was All for Justice, which spent about $7 million supporting Democratic candidates for the Illinois Supreme Court. The group reports its donors, which were primarily labor groups, trial lawyers and law firms that regularly appear before the state high court, and elected officials. Citizens for Judicial Fairness, which spent $5.6 million supporting Republican candidates in the same races, was funded entirely by Kenneth Griffin, a hedge fund CEO and the wealthiest person in Illinois until he moved to Florida last year. Griffin has been vocal about his frustration with the state supreme court, which in his view has been an obstacle to lowering taxes in the state by striking down pension reform laws (an issue likely to come before the court again).

While these figures only include spending on state supreme court elections, some groups spent to influence lower court races as well. Texas’s Judicial Fairness PAC spent almost $2 million on state supreme court races and more than $3 million in a largely unsuccessful effort to unseat “soft-on-crime democrat judges” in Harris County, home to Houston. In Kentucky, Fair Courts America, a group funded partly by national Republican megadonor Richard Uihlein, spent $200,000 in a failed attempt to unseat a Franklin County judge who regularly hears challenges to state legislative acts and has ruled against the Republican majority in key cases. 

Overall, spending by groups on the left and right was as close as it has ever been. Conservative groups spent $23.7 million, or 51 percent of all the interest group money this cycle, while liberal groups spent $22.4 million, or 49 percent of all the money. However, there is significant variation within states. In Pennsylvania and North Carolina, for example, conservative groups vastly outspent liberal groups, accounting for 89 and 67 percent of all outside spending, respectively. Meanwhile, in Ohio and Michigan, liberal groups accounted for 68 and 92 percent of all outside spending, respectively. Historically, conservative groups have in the aggregate accounted for a far greater share of the spending in state supreme court races, and the shift this cycle may reflect new attention to state courts from the left.

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The 2021–2022 judicial election cycle has already had a tangible impact. In North Carolina, for example, just months after the election, the supreme court’s new conservative majority used an unusual procedure to rehear and reverse several decisions its predecessors issued only months earlier related to redistricting and voting rights. These substantive outcomes, and those in many state high courts, are at least partly the result of judicial elections shaped by millions in campaign spending that has changed the makeup of courts, exerted pressure on judges, and altered judges’ relationships with other state officials. 

States can do more to ensure judicial elections do not undermine courts’ ability to play their essential role in our democratic system. That includes strengthening ethics rules so judges do not hear cases involving major supporters and electing judges to single terms so they do not decide cases with their next election looming. Another option is to move from judicial elections to well-designed appointment systems. 

However states select their judges and strengthen those processes, it is as important as ever that the public understand the politics of judicial elections and how those politics influence courts that have become increasingly central players in our democracy.  

*Eric Velasco provided research and data analysis to this report