Why to vote ‘Yes’ on retaining state Supreme Court justices

Nov. 4 is Election Day in Allegheny County and throughout Pennsylvania. Even though 2025 is an “off-year” election, Pennsylvania voters have important choices to make. The election attracting the most interest, both in Pennsylvania and nationally, is the retention election for three Pennsylvania Supreme Court justices: Justices Christine Donohue, Kevin Dougherty and David Wecht. Two of these justices, Donohue and Wecht, are Pittsburghers; Wecht also is a prominent and respected member of our Pittsburgh Jewish community.

This election is critical to the future of this country. I urge you to read the back of the ballot, where the retention election appears, and to vote “Yes” to retain Justices Donohue, Dougherty and Wecht.

Background
Under the Pennsylvania Constitution, state Supreme Court justices are elected to 10-year terms. After that, they are subject to “retention elections” every 10 years until they retire, which is mandatory at age 75. These are “Yes or No” elections — there is no opposing candidate, and justices are not listed as Democrats or Republicans. Justices receiving more “Yes” votes than “No” votes receive another 10-year term, subject to retirement (or impeachment or removal for misconduct) before then.
If a justice were to receive more “No” votes than “Yes” votes, the governor (currently Democrat Josh Shapiro) would appoint a successor, subject to the advice and consent of two-thirds of the Pennsylvania State Senate (currently majority Republican.) If the state Senate did not confirm the governor’s appointment, the Supreme Court seat would remain vacant until filled through an election in 2027.

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As the administrative office of the Pennsylvania Courts explains: “The intent is to provide a fair and nonpartisan way for
the public to judge its judges.”

The challenge to retention of the three Pennsylvania Supreme Court justices
Typically, Pennsylvania Supreme Court justices have been retained by wide margins in elections to which little attention has been paid. It has been 20 years since a Pennsylvania Supreme Court justice lost a retention election. This year, these retention elections are an extremely big issue. Despite the non-partisan design of the retention election process, there has been a very active and well-funded partisan effort by conservative groups and the Republican Party to urge voters to vote “No.”

In turn, there has been a vigorous response urging voters to vote “Yes.” Gov. Josh Shapiro strongly supports the retention of these three justices, citing the protection of freedoms and a woman’s right to abortion and birth control. While Shapiro is a Democrat, the non-partisan Pennsylvania Bar Association also recommends retaining Justices Donohue, Dougherty and Wecht.

Opponents of retention have argued that a 10-year retention term is undemocratic and that a “No” vote is needed to create “term limits.” However, they are not seeking to change the retention election rules in Pennsylvania. They just do not want these three justices, originally elected as Democrats, to be retained. Voting “No” on retention of these three justices would not amend the retention election rules in the Pennsylvania Constitution and would not create term limits.

Furthermore, the retention election already is a democratic process; by contrast, federal judges are appointed for life.

Why the Pennsylvania Supreme Court judicial retention election is important
The New York Times recently stated (Sept. 16): “What’s at stake is nothing less than control of the highest court in the most important swing state in the country.” As the Times noted, these three justices have played an important role in Pennsylvania Supreme Court election law decisions: “In 2018, all three Democratic justices up for retention voted to knock down the state’s congressional map as an unconstitutional gerrymander. In 2020, the Democratic justices ruled that ballot dropboxes were permitted in the state. And in 2022, the justices upheld the state’s mail-in voting law.”

If the three justices are not retained, and with the Republican-controlled state Senate having veto power over replacements, the composition of the Pennsylvania court would be fundamentally altered in advance of the 2026 election. The court likely would go from a 5-2 majority of justices originally elected as Democrats to a 2-2 split.

In normal times, there would not be any serious challenge to the retention of any of these justices, much less all three of them. Justices Donohue, Dougherty and Wecht are experienced judges. Each served for many years on other courts before earning election to the Supreme Court, and, as the non-partisan Pennsylvania Bar Association noted, each has served with distinction on the Pennsylvania Supreme Court.

These are not normal times. We are facing an intensive effort to remake our national government, to repose power in a president and an executive branch that is far less constrained than in the past by the legislative and judicial branches. The administration also appears committed to an executive branch — including the Department of Justice, the FBI, ICE, the military and regulatory agencies — loyal to and controlled by the president.

The forces attempting to make these fundamental changes currently control the presidency and both houses of the U.S. Congress, and, on many key issues, have been aligned with the views of a majority of the U.S. Supreme Court. Accordingly, the executive branch’s aggressive agenda has proceeded largely unchecked.

This absence of checks and balances would be deeply concerning regardless of which party controlled the levers of power. Removing these three Pennsylvania Supreme Court justices would remove one more vital check and balance.

Vote “Yes” on retention
The elections of 2026 and 2028 are crucial to the future of the country. Elections are how the people express their political will and hold political leaders accountable. Whether or not you believe, as I do, that the radical authoritarian changes this administration is seeking are an existential threat to our country, it is essential that we have free and fair elections in 2026 and 2028 (and beyond) so that we, the people, can choose the direction of our country.

Preserving free and fair elections also is a Jewish issue. Authoritarian countries without free and fair elections, whether left or right, have not gone well for Jews, to say the least.

In the richest Jewish tradition, we could debate whether electoral democracy is a “Jewish” concept, as we debate virtually everything else. But that tradition of debate itself reflects the core Jewish value of respectful and thoughtfully reasoned disagreement, a core value in line with having our disputes resolved at the ballot box and by able judges, rather than by the exercise of raw power. Likewise, it is a core Jewish value to stand up through lawful means for anyone oppressed by the wrongful exercise of raw power.

Pennsylvania will be a critical state in these elections, as it always is. The Pennsylvania Supreme Court has been a bulwark to ensure that Pennsylvania elections remain free and fair. To ensure that this crucial bulwark is preserved, please vote “Yes” to retain Justices Donohue, Dougherty and Wecht. PJC

Michael E. Lowenstein is an attorney living in Pittsburgh.