I’d like to think abortion will make a difference in the Supreme Court races, but it’s not so easy.
Three Texas Supreme Court seats are up for grabs this November and, for the first time in a long time, Republican incumbents are facing heat from Democrats, who see these races as the best chance Texas voters have to influence the state’s near-total abortion ban.
Democrats have created a political action committee to unseat “Jimmy, John and Jane” — justices Jimmy Blacklock, John Devine and Jane Bland. In statewide TV ads, the PAC draws a line between these justices’ rulings on abortion and the stories of women who say they were harmed by the new laws.
“We just have to say, these are the folks that did that thing that you don’t like,” said PAC founder Gina Ortiz Jones, a former undersecretary of the Air Force in the Biden administration and a San Antonio native. “This is how you can hold them accountable.”
Since the U.S. Supreme Court overturned Roe v. Wade in 2022 and allowed states to set their own abortion laws, state courts have become the new electoral battleground. More money was poured into state supreme court races in the last two cycles than ever before, and this year promises to shatter even those new records, according to the Brennan Center for Justice at New York University.
Whether that national fervor will move the needle in Texas remains to be seen. Like the rest of the state government, the state Supreme Court, where nine justices each serve staggered six-year terms, has been the exclusive domain of Republicans for more than two decades. Getting even one dissenting voice on the court could be influential, but this may not be where the state’s sturdy red wall begins to crumble, said Todd Curry, a political science professor at the University of Texas at El Paso.
“I don’t think we’ve hit the watershed moment where there ends up being a Democrat on the Texas Supreme Court,” Curry said. “We’re not quite there yet, but I think give us four, eight years, and we might get to that point.”
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Texas Democrats may have an easier time tying abortion to the courts than in other states, since the justices in Texas have actually had opportunities to rule on the issue, said Rebecca Gill, a political science professor at the University of Nevada, Las Vegas. But actively campaigning on specific issues can be tricky in judicial races.
“Even though Texas has partisan elections, I think it is still sort of uncomfortable to think about these judges being representatives of particular policy interests, as opposed to being more technocrats who are specialists at interpreting the law,” she said.
Democrats are also fighting against the reality that even a Blue Wave won’t create a new majority on the high court in this election cycle. But adding even one dissenting voice can be hugely influential, Gill said.
“Judges tend to be pretty good at talking about legal things in a way that makes it sound like the decision they are making is the only possible decision you could come to,” Gill said. “It isn’t until you read a dissenting opinion that you think, well this is also very convincing… if you don’t have that dissenting voice, then it’s very difficult for people who don’t speak legalese to be able to understand how much of these decisions are really discretionary.”
Curry, the UTEP political science professor, said a dissent can also be cited in future court cases, or if a case gets escalated to the U.S. Supreme Court.
But he’s skeptical that voice will be heard on the Texas Supreme Court bench anytime soon. He pointed to the challenges of campaigning statewide for a low-awareness race, and of keeping the attention on these issues and the court’s role in them, for months after they started to fade from the media.
But that doesn’t mean it’s a lost cause for Democrats forever, he said, pointing to Republicans’ decades-long effort to rebalance the U.S. Supreme Court in their favor.
“I think Democrats statewide need to start thinking on a longer timeline than the next immediate election, because groundwork and party building isn’t something that just happens,” he said. “But it’s been lacking in the state for a fairly long time.”
Most of the rest of the story is about the Find Out PAC and why John Devine in particular needs to go. I don’t think we’re ready to win these elections yet, and Lord knows we should have been building infrastructure and raising money for races like these well before now, but I do think the Find Out PAC has done a good job of raising the issue. It’s a leg up on the next election, assuming we don’t just dismantle everything and forget this ever happened before then.
One of the challenges in recent years has been that the Democratic statewide judicial candidates have run a bit behind the top of the ticket. There’s some variance in there, the usual one to three point spread, but between the Presidential candidates and Beto in both 2018 and 2022, we would have needed to win at the top by at least a couple of points to have brought some judicial candidates across the finish line. That hasn’t always been the case – in years like 2006 and 2008, the high scorers on the Democratic side were judicial candidates – but current partisan trends and vastly differential fundraising success at the top has led us to where we are. It’s possible this year could be a little different, or it may just be that Colin Allred leads the pack instead of Kamala Harris, and the judicials are a couple of points behind him. If nothing else, I’ll be interested to see if we have less dropoff for the downballot Dems than we’ve seen in recent elections. Having some ads running in support of those candidates, as well as a potent issue for them, ought to help. We’ll see how much it does.