Control of the Pennsylvania Supreme Court is on the ballot this year, with three Democratic justices up for retention elections.

These yes-or-no elections are normally sleepy and rarely result in a justice being forced off the court. But Republican operatives, who have chafed at the Democratic-majority court's decisions for a decade, say that with a flip within reach, they're getting ready for an expensive political fight.

Judges on all three of Pennsylvania's statewide appellate courts serve 10-year terms, though they must retire at age 75.

Judges get successive terms via a retention election where voters are simply asked to say yes or no to giving a judge another decade on the bench. If the vote is yes, the judge stays on. If it is no, the governor can appoint a temporary replacement subject to Senate approval. An election for a replacement to serve a full term is then held in the next odd year.

In the past 10 years, members of the state Supreme Court's Democratic majority have overseen and intervened in the commonwealth's redistricting; allowed a case challenging the state's education funding system to go to trial; upheld Covid mediation efforts; and backstopped the state's voting laws against conservative challenges, most notably from Trump's 2020 campaign.

They've also made quieter moves that have inflamed opposition from business interests, including loosening restrictions on malpractice lawsuits and opening the door to gig workers becoming employees rather than independent contractors.

The seven-member court currently has five justices elected as Democrats and two as Republicans. The three Democratic state Supreme Court justices on the ballot in November are Christine Donohue, Kevin Dougherty, and David Wecht.

The lower appellate courts also have an election apiece. Superior Court Judge Alice Dubow is up for retention, as is Commonwealth Court Judge Michael Wojcik. Both are Democrats.

GOP seeks 'decade-long impact'

Combined with the increased politicization the judiciary has seen during the Trump era, this handful of usually obscure elections is set to attract major attention and funding from both parties.

Republicans in particular see it as a huge opportunity. "This has been circled on my calendar for a long time," veteran GOP political consultant Christopher Nicholas told Spotlight PA.

Open elections for seats on Pennsylvania appeals courts have increasingly become expensive affairs, attracting millions of dollars from trial lawyers, labor unions, business interests, and megadonors.

Retention elections so far have been unaffected by this trend. But nine months out, that appears to be on track to change.

In a recent memo, the Republican State Leadership Committee, a national group that helps finance state races, highlighted Pennsylvania's retention elections, noting those justices would oversee electoral maps during the next redistricting cycle.

"That's why the RSLC's [Judicial Fairness Initiative] is already committed to spending seven figures in 2025 and raising even more resources is necessary to win and could make a decade-long impact," the memo said.

One GOP activist, Scott Presler, said that he has already hired 23 staffers in the state to register voters and raise awareness on the retention races.

On the Democratic side, state party officials have begun sending out fundraising emails highlighting the races. One from late January said 2025 was "one of the most important election years for our future."

State Sen. Sharif Street of Philadelphia, chair of the Pennsylvania Democratic Party, told Spotlight PA that justices would "have the resources that are needed to win, and we understand what that's going to require."

Philadelphia's powerful trial bar has also said it will back the retention of the three justices.

The political spotlight on these races is troubling some court watchers, such as Deborah Gross, president of Pennsylvanians for Modern Courts, a Philadelphia nonprofit that advocates for an appointed, rather than an elected judiciary.

"I'm scared," Gross told Spotlight PA. "I'm really scared."

Retention elections are meant to be a nonpartisan referendum on a judge's performance, Gross said, which is why the party affiliation the judge was originally elected under does not appear on the ballot.

"There's going to be a lot of money spent," she added. "I think unfortunately what is going to happen is partisan campaign advertising that is going to be topic-based as opposed to merit-based."

A unique election process

Campaigning can be difficult for judges seeking retention because the Code of Judicial Conduct sets strict rules to maintain their impartiality. While they are allowed to talk about their approach to the law, they're barred from discussing specific cases or definitely saying how they would rule on any given topic.

"Judges can't really talk," Gross said. "They can't say 'I'm going to decide this way.' So many of them don't really speak on decisions they handed down."

That can make campaigning against retention a simple prospect. "This is a political consultant's dream because your message is just one thing, and that's 'No,'" Nicholas said.

If Republicans are successful in defeating the three Democrats, it could provide an opportunity for them to flip control of the court in open elections in 2027.

Judges normally don't come close to losing retention, with most winning a new term by 30-plus percentage points. Just one statewide judge has ever lost retention — Supreme Court Justice Russell Nigro in 2005.

Tim Potts, an activist who campaigned against Nigro's retention, said it started when the Supreme Court upheld the state's 2004 slot machine legalization, which the legislature approved over 48 hours by inserting language into a semi-related bill.

After the state Supreme Court upheld the law, Potts said he and a network of good-government groups began to organize against two retention elections that year.

Then lawmakers used a similar process to pass a pay hike for the legislature, executive, and judiciary, which flared skepticism into opposition to the commonwealth's political establishment.

They spent little money, relying on news coverage and word of mouth. Another justice, Sandra Schultz Newman, was also up for a new term that year. But while Nigro lost by a 2-percentage point margin, Newman won by about 8 percentage points.

Nigro told Spotlight PA that he thought he lost for many reasons, including opposition from the Philadelphia political machine.

As for the pay raise, which he said he had nothing to do with, he thought that the public's anger was misplaced and stoked by the press.

Voters, Nigro said, were mad at the pay raise and "voted accordingly. And they blamed me because Justice Newman and I were the only ones on the ballot."