General U.S. News2h ago
Red-state courts kept abortion legal. Four years after the Dobbs decision, abortion battles have largely taken a backseat in national news to other policy fights this cycle. Yet a little-known battle has been playing out in Kansas, where a ballot measure to change the way state supreme court justices are selected serves as a reminder that these fights over abortion are still active, even if they take the form of creative procedural and administrative efforts. In 2019, the state supreme court recognized the right to abortion in the state constitution; three years later, after Dobbs , voters rejected a Republican-championed proposal to overturn that ruling, choosing to preserve abortion rights by a 59-41 margin in a deeply red state. It was after that failed vote in 2022 that then-state attorney general Republican candidate Kris Kobach outlined a new strategy for undoing these protections: changing the way the supreme court is selected, electing anti-abortion candidates, and “slowly and quietly” overturning the 2019 decision and 2022 vote. “If you look at the various proposals, one of the proposals that is crystal clear is allowing people to popularly elect justices to the supreme court, which is the most common system among all of the states in the country,” Kobach said in 2022. These independent checks on power have been under attack for years, Michael Milov-Cordoba, a court expert and counsel in the Brennan Center for Justice’s judiciary program, told me. “State legislators across the country are increasingly trying to undermine those courts…That retaliation takes a few different forms, but changing how judges are selected is top of the list,” Milov-Cordoba said. “And what we’ve seen is that in many states where courts stand up for abortion rights and strike down abortion restrictions, efforts to change state judiciaries have followed.” He noted the complete reworking of the Utah supreme court in the last year, including by expanding and packing it. Similar retooling of the state supreme court happened in Iowa in 2022 . Montana is likely the next battleground, where Republican legislators are exploring various avenues to strip or limit the state supreme court’s powers. And in recent years, state supreme court elections have been inundated with spending and attention from both in- and out-of-state backers. Last year’s Wisconsin judicial election, for example, became the most expensive race of its kind in US history , with more than $100 million spent — just two years after a contest for a different seat on the state supreme court had set its own record at more than $50 million spent. “If these courts become partisan, then they will be just like any other election fight — subject to being bought and sold by billionaire political funders,” Deirdre Schifeling, the chief political and advocacy officer at the ACLU, told me. “They become a race to the bottom… and [Republicans] are finding backdoor ways to seize power to push their ideological agenda.” Already, Kansas has seen heavy spending: more than $12 million have been spent from both sides, including about $5 million from the ACLU, Schifeling told me. ”Everyone’s focused on the Michigan Senate race, other kind of big-ticket, sexy elections,” Schifeling said. “Well, this is just as important and much more under the radar.
