The other day, a reader asked me what I thought of a current effort to deny retention to three members of Indiana’s Supreme Court– judges who had voted to uphold Indiana’s abortion ban. As I told that reader, voting no on a retention vote because of disagreement with one ruling would set a very dangerous precedent.
I subsequently spoke with several practicing lawyers, including a good friend who is a highly respected trial lawyer, an active member of the local bar, and personally pro-choice. He suggested that I share the following information with my readers.
First of all, the process. For fifty years, Indiana has had a merit selection process to identify and appoint members of Indiana’s Supreme Court and Court of Appeals. Once candidates who have been found to be highly qualified are appointed, they submit to a statewide retention vote within two years. Thereafter, they are submitted for a retention vote every 10 years.
This year, Chief Justice Loretta Rush, Justice Mark Massa, and Justice Derek Molter are up for retention to the Supreme Court. None of them is known as “liberal” or “conservative” or partisan. The organized opposition to their retention is based upon their ruling on a challenge to Senate Bill 1, the abortion ban passed by Indiana’s regressive legislature in the wake of the Dobbs decision. Indiana’s ban broadly prohibited abortion but made exceptions for 1) when an abortion is necessary either to save a woman’s life or to prevent a serious health risk; 2) when there is a lethal fetal anomaly; and 3) when pregnancy results from rape or incest.
We can argue about how those exceptions work–or don’t–in the real world, but they are written into the law.
Abortion providers sued to invalidate the law and to enjoin its enforcement. The lawsuit was what lawyers call a “facial challenge”–meaning that the providers had to prove that they had standing and that there were no circumstances under which the law could be upheld. The court found that the plaintiffs had standing to bring the case and that Article 1, Section 1 of the Indiana Constitution protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk.
At the same time, the majority found that the Indiana Legislature had the authority to prohibit abortions that didn’t fall within one of those three categories. It also recognized that, prior to Roe v. Wade, Indiana and forty other states had upheld legislative limitations on abortion.
Lawyers can agree or disagree with the majority’s interpretation. I do disagree– but it was a reasoned decision, far from the historical dishonesty and religious ideology that permeated Dobbs.
As readers of this blog know, I strongly support abortion rights, and I disagree profoundly with the Dobbs decision. But the postcards that are being disseminated to the public accusing these three justices of voting to ‘strip away’ Hoosier women’s rights to abortion are misleading and unfair. The Justices are bound by precedent–and, unlike the U.S. Supreme Court– they followed their honest reading of that precedent.
As my lawyer friend reminded me, Indiana has one of the most respected supreme courts in America. Our justices serve in many capacities in national judicial organizations, and Chief Justice Rush has been president of the Conference of Chief Justices and Chair of the National Center for State Courts. Opinions of our supreme court are frequently cited in other state judicial opinions and scholarly articles and relied on by state and federal courts nationwide.
Typically, only 75-80% of those who go to the polls will bother to vote on judicial retention. Of that group, there’s a “hard core” of approximately 30% who always vote no. That means that an organized group opposing a judge or justice need only muster another 21% or so–and that’s why this effort is so dangerous. The retention of judges should be based upon their entire body of work and not upon a single opinion, even a questionable one.
I share the anger of people who oppose Indiana’s ban, but our animus should be directed at the legislature–not at a court that, rightly or wrongly, held that the legislature had authority to act.
If the effort to unseat these jurists succeeds, it will close the Indiana Supreme Court for several months, pending the selection of new justices. Worse still, if the Braun/Beckwith ticket wins (and this is deep-Red Indiana), Christian Nationalists will select the new Judges. I’m sure that Braun would be more than willing to subvert the merit process in order to elevate clones of Alito, et al. to Indiana’s top court.
Be careful what you wish for.
Thank you for this thoughtful essay Professor.
This is helpful. Thanks.
So we are to only hold the legislature accountable for the abortion mess in Indiana? What about the court’s decisions on vouchers and gun control?
It seems to this old woman that the Indiana Supreme Court has been nothing but a tool of the far right Republican Party all along, so what’s the fear of that court becoming more right wing? If your vote to retain these three justices is based on your fear of what Republicans will do next, then you deserve to continue to live under the rule of right wing conservatives. As for me, I’m voting for “Enough is enough!”
Enough IS enough. I plan to vote NO on all three.
“None of them is known as “liberal” or “conservative” or partisan.”
I have already returned my mail-in ballot without casting a retention vote. For me, and probably for many others the issue is “None of them is known!” I agree that basing a vote on one issue is dangerous beyond setting a precedent; but where does the average voter find the information to base our vote on? Local media provides little enough information on candidates other than words or actions which will grab headlines. “The retention of judges should be based upon their entire body of work and not upon a single opinion, even a questionable one.”
Which is most dangerous, no vote due to no information or unseating a judge based on one issue which made the news? The Indianapolis Star and Indianapolis News used to provide court information, however right-leaning, but gave us information to look further into. For me; this points to the value of daily newspapers and may explain the takeover of such as Rokita, Braun, Todd, Trump and MAGAs with their “If it bleeds, it leads!” level of attention. TV campaign ads are costly, unlike the former daily newspapers which are fading away.
Thinking back I remember, I think her name was Judge Virginia Gilmore, who presided over the Mike Tyson rape trial. I remember not only the trial but the deadly fire where the jury was housed; one of the firemen lost was a friend. I also remember the problems of getting into the City-County Building safely to work through the hostile crowds of Tyson fans. We need better sources of information locally to make local election choices, including retention votes; we are the ones who elect those who move up to state and federal levels and look what we have ahead of us on November 5th. I still miss my morning newspaper but do NOT miss the Indianapolis Star; on my daily walks I no longer see the familiar plastic bags with daily home delivery of the Star. I can only assume home delivery has ended; ending a primary source of information and ending the motivation to vote in elections.
Joann – The Indianapolis Star is still delivered, to my door, due to the kindness of a neighbor. It is a mere shadow of its former self, never the less it does print some important local news.
Thanks for the blog post. It is so hard to find almost any information about the people on the judicial retention questions. Thanks for a little perspective and the possible bad result of being a single issue (and possibly narrow minded) voter.
Thank you, Sheila, for this explanation.
If this is “Deep Red Indiana” (which it is), then one can assume that the judges up for a retention vote were appointed by a Deep Red governor and confirmed by our Deep Red legislature. Therefore, don’t retain anything that the Republicans appointed. Until I see something resembling a purple statehouse, the retention votes will always be a big Hell No.
If that gets us even crazier jurists from a Braun/Beckwith administration, then just keep voting no against retaining judges. I don’t think I’ve ever voted Yes to retain a judge in Indiana.
I’m also biased because I’ve dealt with our legal system in Delaware County, Indiana, which is, by far, one of the most corrupt “justice” systems in the Hoosier state. It doesn’t matter if they’re R or D; the system is rotten to the core!
I could spend all morning writing about my experiences with lawyers and judges in this state, but I’ll spare you. I’ll continue voting not to retain judges until I see an attempt to clean up their system from top to bottom.
Sheila, you, and your lawyer friend, make some excellent points.
Down here in Florida, I will vote not to retain our two justices. One is disqualified by membership in the Federalist Society, in addition to her votes to approve the entirety of our dear Governor’s agenda.
IMHO the vast majority of that agenda violates, not just the Florida Constitution, but also the US Constitution. Our Supreme Court has given him a pass on everything.
Nice well-reasoned article, and I totally agree with your thoughts. From my 40+ years of practice, I know Chief Justice Rush and Justice Massa, and find them both to be outstanding members of the court. I don’t really know Justice Molter, but I don’t know of any reason he should not be retained.
Your posting today provides an important public service, Sheila. This explanation is what was/is missing in response to the misguided postcard campaign.
Theresa Bowers, I respectfully urge you to reconsider. There are some, like Todd, who always vote no. Too many people vote based upon social media posts or newspaper headlines. Unless you have read the cases, you would have no idea what the justices actually wrote. The card being circulated that states that the justices “stripped” women of abortion rights is an example. It could not be further from the truth, and it mischaracterizes the opinion. The court actually found for the very first time that women in Indiana have a right to abortion under certain circumstances, and in a subsequent concurring opinion stated that they will have to decide each circumstance that comes before them on the merits. This opinion was not on the merits. I want to also add that these justices truly are not political. They rule on the merits and they are often constrained by the Indiana Constitution.
They are innovators who have made our justice system better and they are nationally respected. I can tell you from the process that selected them that the commissions who picked them were not dominated by right wing ideologues. You will do a disservice to your state if you vote to unseat these fine justices.
Thank you for a very clear discussion of the issue and its consequences. I have also talked to lawyers who have practiced in Indiana for decades. They agree with Prof. Kennedy’s opinion.
Thank you Sheila.
I have been a subscriber to the Indianapolis Star since 1966 and am thoroughly disgusted with what it has become under Gannett ownership. Seriously thinking about canceling my subscription after the election, although they aren’t giving me much reason to keep it even now. As an example: the Colts play a home game at 1 PM on Sunday and it doesn’t get covered by the Star until Tuesday. Pathetic!! (And understand that I don’t even care about the Colts.)
It is interesting that those who are supporting retaining the judges in this coming election are mostly from the legal world… lawyers and such. And their perspective, however self serving, is appreciated. That said, my own perspective is from my life experience of being a mother of a daughter, a grandmother of three granddaughters and a great grandmother of two great granddaughters; ALL of whom were stripped of their right to make their own decisions concerning reproduction by the Republican Controlled Legislature and the State Supreme Court. Those court decisions may have had every word spelled correctly and all of the punctuation just right, they may have impressed the legal establishment with their bobbing and weaving that kept them out of taking a firm stand for the constitutional rights of women, but the bottom line is that women in this state have lost the right to make their own reproduction decisions. And these three men were a part of that! Enough is enough!
I cannot vote BLUE without voting against retention. If supposedly good people get swept up in ridding our nation of this pestilence, then I guarantee you any non-retained judge will have no problem immediately getting senior partner compensation at the law firm of THEIR choice. Show me any ruling that hasn’t supported the MAGA movement and Rosita, then I might soften my commitment.
Pat Traub and Theresa, read the decision. The one woman and two men did not “strip” anyone of their rights. They found a right to abortion under Indiana law. The case before them was not postured for them to decide it on the merits. I am not saying this because I am lawyer, but I do know these justices, and I have read the opinions. Indiana cannot do better than these justices.
I wish Ruth Bader Ginsberg was here today to explain (in legal terms if they wanted) why the legislature doesn’t have the authority to make family planning decisions for women. A lot of laws have ties to old prescience Church teaching and when public officials assume that sacerdotal role they are infringing on our inherent rights. Legislature needs to show more respect to its citizens, allow referendum and unlock the unfair gerrymandering that promotes pseudo representation. Judges need to realize the inherent rights of women aren’t up for public scrutiny but inherent. The whole accepted way of looking at those issues/laws is prescience, authoritarian and patriarchal.
Thank you for sharing this, Sheila. I received similar information from a local attorney who has served on the Judicial Nominating Committee and practices with my husband. I have been a strong advocate to vote NO on retaining the three Indiana Supreme Court Justices, and will have an op-ed in the Fort Wayne Journal Gazette tomorrow stating just that.
He was essentially asking me to concede that Braun will win and appoint even worse Justices to replace them. I am not willing to make that concession. It will be unprecedented if the three justices are not retained and unlikely unless an unprecedented number of democrats who are voting for Jennifer McCormick vote no on retention. A new Democratic governor and a new Supreme Court majority appointed by that governor is our best chance to reign in the current legislative supermajority, restore women’s rights, and end gerrymandering in our state. If Jennifer McCormick and Destiny Wells do not win, our Supreme Court may be the least of our worries.
I do not trust the present Supreme Court Justices to protect me or the people I love. Women in Indiana will have no more rights than allowed by SCOTUS. Our only constitutional right currently guaranteed to women is the right to vote, and we must exercise it decisively in November.
I disagree that the Planned Parenthood decision was “well-reasoned.” Justices Molter, Rush and Massa said that the 1984 amendment to the Indiana Constitution changing “all men” to “all people” after Indiana ratified the ERA meant NOTHING. They said it was “purely stylistic” because women in Indiana have had equal rights since 1893–before we even had the right to vote. Read page 5 of the decision. Read Justice Goff’s dissent. We need a new Indiana Supreme Court majority who will join with Justice Goff and protect our fundamental rights.
So I say vote NO to retain these three who will not protect women and children in Indiana and vote for Jennifer McCormick to appoint three new justices who will make a new majority on Indiana’s 5-justice Supreme Court.
The Indiana Supreme Court provides this information on judicial retention and the justices and appellate judges on the ballot this year:
https://www.in.gov/courts/retention/
On page 35 (Section B, Point 2) of Members of the Medical Licensing Board of Indiana v. Planned Parenthood Justice Molter writes, and Chief Justice Rush and Justice Massa agree:
In 1984, voters ratified an amendment to Article 1, Section 1 changing
its statement that “all men are created equal” to say instead that “all people
are created equal.” Again, we must determine “the common understanding of the proposers and ratifiers of the constitutional amendment.” Campbell v. City of Indianapolis, 155 Ind. 186, 57 N.E. 920, 928 (1900). And here again, the historical evidence is clear: the amendment
was a purely stylistic update to the Constitution, and our Court
previously recognized “the General Assembly desired no substantive
change.” Gallagher v. Ind. State Election Bd., 598 N.E.2d 510, 514 n.4 (Ind.
1992). A century before the 1984 amendment, our Court had already held
that our Constitution protects men and women equally. Leach, 34 N.E. at
642. Changing “men” to “people” in the 1984 amendment simply better
reflected that understanding and was further meant to avoid offense.
WWRBGD, What would Ruth Bader Ginsberg do???
In some other states (Colorado when I lived there), the bar association members takes a survey on several aspects of the judges with whom they have in court experience. Questions are asked them about did this judge treat plaintiffs/defendants fairly, several others. Those are summarized and sent to voters. Lawyers have to argue whatever side they work for (regardless of their personal beliefs), so I found thatinfo very helpful. Occasionally a judge would get a negative review.
I am upset with these Justices over their abortion ban decision and their slaps on the wrist to Todd Rokita AND his predecessor Hill. I’m strongly inclined to vote NO on their continuation on the Supreme Court, but I also think Braun and Beckwith would find absolute nut cases to replace them. Indiana is damned either way. What to do????
I doubt re-call will succeed in gerrymandered Indiana, but I believe the Republican Super Majority should see some major displeasure at denying any Hoosier woman the right to her own healthcare decisions.