By Marc Stier
Those of us who have been fighting the judicial gerrymandering constitutional amendment have been focused less on the highly uncertain partisan implications of the proposal but on its implications for the balance of power among the three branches of government in our state.
We are concerned that giving the General Assembly the power to draw judicial districts will enable it to exert undue influence the courts.
And that power will be especially noticeable in the transition from our current system to a future one, during which legislators would be able to interfere with the retention elections of our sitting justices and potentially deny one of them the ability to run for reelection.
The reason that almost all the states that elect justices of the highest court do so in statewide rather than district elections is to limit the influence of the legislature on the courts.
The experience of recent weeks points to another systemic problem with judicial districts—the smaller the electorate the more likely that extremists will be elected. This problem has been well known to political scientists, but as partisan division has become greater in America and Pennsylvania, this problem has become more far more obvious to all.
The smaller the electoral district the more homogeneous it is likely to be both politically and demographically. The more homogenous it is, the more dominant one party is likely to be.
And the more dominant one party is, the more likely that the extremists in the party, who tend to vote at far higher rates in party primaries, will determine the party nominee and thus who is elected to office. In large, heterogeneous districts, the party balance tends to be closer and both parties have a shot to win a general election. Parties that nominate extremists in large districts tend to lose general elections.
That is why both U.S. and Pennsylvania senators who are elected in larger districts tend to be far less extreme than members of the House. In the vote to reject the presidential electors chosen by Pennsylvania voters, 121 of 199 (or 72 percent) of Republican U.S. House members, including eight of nine from Pennsylvania, stood with former President Donald Trump.
The U.S.Senate vote was far different—only 7 of 51 (or 13 percent) of Republicans supported the challenge to the electors chosen by the voters of Pennsylvania, and U.S. Sen. Pat Toomey, R-Pa., was adamant in rejecting it.
We have long seen a similar phenomenon in Pennsylvania state government. In the last few years, on issues ranging from the state budget to a shale tax to raising the minimum wage, Democrats and Republicans in the Senate have been able to reach a compromise agreement only to see the extremists in the House Republican caucus block action in that body.
No matter which party one belongs to, it is not in our interest to see courts—and especially our highest court—become even more partisan than it is today.
Far more than in a legislative body, the courts need to aim for the middle of the road, for nonpartisanship, and above all for consistency. The rule of precedent—stare decisis—is critical in interpreting constitutions and statute because a legal system only functions well when the requirements of the law are predictable and reliable.
Republicans who opposed some of the decisions of the Pennsylvania Supreme Court in recent years will complain that the court has not followed this rule.
But while they lost cases on congressional gerrymandering and emergency powers, the Democratic majority on the court was not wholly unified on either case and the decisions were based on reasonable interpretations of statute and the Pennsylvania Constitution.
And those who are complaining should be careful what they wish for. There is no certainty about control of a Supreme Court elected in districts, and we could imagine far more radical decisions emerging from a Supreme Court controlled by extremists that both Republicans and Democrats might oppose.
One of the most important political adages is “beware unintended consequences.” That judicial gerrymandering might lead to judicial extremism is one that should concern us.
But there is another possibility—that this consequence is intended by the prime sponsor of this amendment, state Rep. Russ Diamond, R-Lebanon, and his allies.
Diamond is on the far–right edge of his caucus. He has been minimizing the danger of COVID-19, thinks that mask requirements are an attack on our civil liberties, and almost always votes against the budget. His other big idea is to institute a sales tax on groceries and medicine.
If judicial gerrymandering actually succeeds in packing most Democrats into a few court districts centered around Pittsburgh, Philly, and their suburbs, Republicans in these regions would find no path to be elected to the appellate courts.
That might drive Republican lawyers in these regions—who are usually prominent political activists and contributors—to change parties, which would, in turn, undermine the Republican Party in these regions.
Those of us who believe that democracy requires two vigorous, competitive parties—and for years have bemoaned the lack of two vigorous parties in Philadelphia—may be concerned about the consequences judicial gerrymandering for the Republican Party in Democratic areas of the state.
But what is one more bug in this constitutional amendment for me might actually be a feature for extremists like Diamond who want the Republican Party to move further to the right and are not concerned with the losing more moderate Republicans in southeastern and southwestern Pennsylvania.
Whatever the intentions of its prime sponsor, those of us who want the state to take a step back from partisan division and extremism, and who welcome vigorous party competition in every part of the state, should be wary of the long-term consequences of this amendment.
Marc Stier is director of the Pennsylvania Budget & Policy Center, a progressive think-tank in Harrisburg. His work appears occasionally on the Capital-Star’s Commentary Page.