For all the political debate about whether or not to retain state Supreme Court justices Christine Donohue, Kevin Dougherty or David Wecht this fall, one question rarely gets discussed: If voters decide to send them home on Nov. 4 … what happens next?
For Chip Becker, an appellate lawyer who vice-chairs the state Supreme Court Commission on Judicial Independence, the answer could be "disarray."
Multiple long-term vacancies on the seven-member court would be a "significant blow to the efficiency and speed at which the court could function," Becker said.
Pennsylvania's constitution lays out a clear procedure for filling a Supreme Court vacancy. If the justices close out their term at the end of the year, the governor can nominate an interim replacement until the next municipal election, which would be in 2027. But the Senate must confirm that nomination by a two-thirds majority.
And while the process is straightforward, the politics are not. The current governor, Josh Shapiro, is a Democrat, while the Senate is held by Republicans. Shapiro and the Senate did not name a replacement for the late Justice Max Baer after his death in 2022. And this year, they haven't found agreement on a state budget, after four months of delay.
There's reason to doubt they could see eye-to-eye on new justices next year. After all, the retention fight has already considerable money and partisan fervor. Deborah Gross, who leads the group Pennsylvanians for Modern Courts, says this year's retention fight has fueled partisan jabs when past races received little fanfare.
"Retention elections were not meant to have a lot of money, not meant to be partisan, but really just meant to be based on justices' performance over 10 years," she said.
If all three justices lose their retention vote, there would be only four left on the bench, evenly divided by party affiliation. Daniel McCaffery and Debra Todd were both originally elected to the court as Democrats, while Kevin Brobson and Sallie Updyke Mundy ran as Republicans.
That party split, and the even number of justices, makes tie votes likelier.
In an interview with WESA, Wecht said the result would be that "the civics and the judiciary will be greatly disrupted."
"Whether you're a Republican, Democrat, Independent … you do not want a four-person court for anything longer than than a week or two," Wecht said.
For starters, he said, "as a practical matter, many cases will deadlock two-to-two." Such rulings would leave a lower court holding intact, but without setting a precedent that others could rely on. Decisions split 3-1 would resolve the case at hand, but without establishing a precedent under a court majority.
"All the people who are waiting on the results — which tend to affect Pennsylvanians in many different walks of life — will be left in limbo," Wecht said.
Since Shapiro took office, the governor and Senate Republicans have agreed on nearly 400 appointments across state and local government. But those often involved positions within Shapiro's administration, obscure posts like seats on the state Milk Board, or government vacancies at the county level, where the impact of an appointment is limited and the parties can engage in horse-trading.
"There's no way that this Senate will confirm a single person that this governor sends them," Wecht surmised.
Senate Republicans declined comment on this story, saying they didn't want to dwell on hypotheticals.
The only time a justice has lost a retention vote was in 2005, when only 49% of voters backed the return of Russell Nigro. Justice Cynthia Baldwin was appointed to replace him by then-Gov. Ed Rendell and confirmed by the Senate. Correale Stevens and Mundy herself were both appointed to the court over the following decade, taking the place of Republican justices who resigned amid scandal.
But the political environment appears to have changed since then. After Baer's death in 2022, then-Gov. Tom Wolf held off on seeking to name a replacement. Shapiro won the gubernatorial election that year, but the new governor and GOP-led Senate did not settle on an appointee. The vacancy remained until McCaffery won the November 2023 election, and was sworn in January 2024.
Becker, a partner at Kline & Specter who regularly observes the court, noted that the justices continued to hear cases with a six-member bench. But even with a Democratic majority intact, tie votes were a danger: For example, the justices deadlocked on important questions relating to state voting procedures and school taxes — to the consternation of some observers.
If Shapiro and Republicans could not agree on replacements this time either, the delay would be at least a year: Shapiro is up for re-election next year, and while polls suggest he is the odds-on favorite to win reelection, he will likely face a spirited challenge from state Treasurer Stacy Garrity. A Garrity win could theoretically break the partisan deadlock on judicial appointments in early 2027. (Republicans currently hold a 27 to 23 edge in the Senate, and have long held a majority in the chamber.)
Shapiro has appeared in ads supporting the justices; Garrity has made it clear she's in the anti-retention camp. On social media she told supporters to "say NO to the radical policies of these judges that will stop at nothing to ensure Democrats win every election they can."
"No elected official should be serving 20 years in office, but that's exactly what Judges Wecht, Donahue, and Dougherty want," she wrote recently on the platform now known as X.
But if the status quo prevails in the legislature and executive branch, the court might well not be at full strength until early 2028.
"Two years is a long time," Becker said. "That's a blow … to operations," and the court would be affected in "every conceivable way."
Such concerns have gained little traction in the retention debate, which has focused on the stakes for issues like abortion and election law. And voters appear puzzled by the choice before them: A Franklin & Marshall college poll this month found most voters are undecided, or simply aren't aware, of the retention election.
And even Wecht said he was unsure about whether he'd have to rush to get opinions out the door on matters the court has heard but not ruled on.
"I've never talked to Justice Nigro to find out what it was like when he lost, and I'm not planning to because I'm not planning to lose," he said. "I certainly hope that wouldn't be a bridge any of us would have to cross."
Read more from our partners at WESA.
