Pennsylvania HB 38: Are Judges Politicians in Robes or Impartial Arbiters of the Law?

An inside view of the Supreme Court of Pennsylvania’s bar and well.

By: Ian L. Courts, Esq.

An Opinion Piece.

All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary.” — President Andrew Jackson

The preceding quote was spoken by President Andrew Jackson, who was notably skeptical about the judiciary of our country. However, he understood the importance of an impartial judiciary in the interpretation of the Constitution and the protection of individual liberties. Later, United States Supreme Court Justice William Brennan reminded Americans that state courts play an equitable role, along with federal courts, in the protection of civil rights. One of the important collateral impacts of former President Donald Trump’s challenges to the 2020 election results was the media’s focus on our courts. It was our state courts that handed down the most exacting rulings on President Trump’s failed election challenges.

Here in Pennsylvania, our state supreme court protected the voting rights of our citizens by dismissing several of President Trump’s election challenges. However, our state supreme court was only able to do this because we recognize the importance of judicial independence. Our legislature is ruminating on a bill, House Bill 38 (HB 38) that would effectively hinder judicial independence, political neutrality, and individual rights. HB 38 would force judges on our state supreme court, and our two appellate courts (the Commonwealth Court and Superior Court) to run in judicial districts instead of at-large statewide elections.

One of the reasons our appellate judges run in statewide elections is because these courts handle important statewide legal issues. The Supreme Court of Pennsylvania, the oldest state supreme court in the country, determines state constitutional issues and is the final arbiter of criminal and civil state matters. Similarly, the Pennsylvania Commonwealth Court rules on significant governmental legal issues affecting the Commonwealth and its agencies. Additionally, the Superior Court of Pennsylvania handles a large caseload of criminal and civil appeals. The issues our appellate courts handle have a far-reaching statewide impact and thus all of our citizens’ voices should be heard in electing each seat on our appellate courts. HB 38 would effectively reduce our voice as citizens in the election of our appellate judges by limiting our vote to one or two seats depending on the size of the population in our judicial district.

HB 38 would effectively allow outside-corporate PAC money to more easily influence local judicial elections with hopes of achieving statewide decisions benefitting themselves and their donors. Currently, there is a significant issue of dark-corporate money in state elections but HB 38 would decrease the aggregate amount of money these organizations would spend on judicial elections while increasing their statewide influence. Corporate money would flood local judicial elections and potentially allow candidates that are more prone to cater to corporate interests to win judicial seats and produce relatively corporate-biased decisions.

Similarly, HB 38 has the potential to affect important civil rights and Constitutional issues within the Commonwealth. Our appellate courts are tasked with interpreting statutes, our state Constitutional provisions, and the impact adverse policies have on everyday citizens and non-citizens. Every issue that affects our rights — LGBTQ, women’s rights, environmental rights, and racial equity would be affected by the judges elected under HB 38’s judicial election system.

HB 38’s reduction in the voice of voters in the election of our appellate judges could potentially cause judges to rule based on electoral consequences in their districts instead of what is fair and just for the entire state. The change this bill will create is alarming for many of us within the state. We need to petition our state representatives and senators to reject this bill. Our courts represent the Constitution and the rule of law — not constituencies. As Justice Thurgood Marshall stated: “History teaches that grave threats to liberty often come in times of urgency when constitutional rights seem too extravagant to endure.” We must recognize what HB38 is, a legislative act intending to curtail judicial independence and create politicians in robes instead of impartial arbiters of the law.

Attorney, Young Black Voice, Law & Politics Observer.