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The uproar over the Arizona Supreme Court’s decision in April to uphold the state’s 1864 abortion law revealed a profound misunderstanding of the role of the judiciary in our democracy. In April, the Supreme Court ruled 4-2 (with one justice absent) that the previous total ban on abortion, enacted when Arizona was still a territory, was reinstated by the U.S. Supreme Court’s June 2022 Dobbs decision overturning Roe v. Wade. The state court found that the 15-week limit passed by the state legislature just before the federal decision did not supersede that earlier law, but used legal reasoning that would have been uncontroversial if the case concerned, say, an insurance policy.
The majority relied on the clear language of the 2022 law, stating that the new law “does not repeal” the territorial ban, “implicitly or otherwise.” The court concluded that “Congress has made its intent clear through its unwavering intent to ban elective abortions since 1864. Congress has demonstrated a consistent plan to limit elective abortion to the extent permitted prior to Dobbs overturning Roe.”
But the majority is now facing fierce criticism in an election year when Democrats see abortion as one of the few issues they believe will be favorable nationally. Justices Clint Bolick and Katherine King are facing tough elections this November to retain their seats, seeing this as an opportunity to shake up a Supreme Court that was all appointed by Republican governors.
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Bolick, who one of us has known for more than 20 years, has long been a target of left-wing activists for his liberal leanings, public dissent and friendship with Supreme Court Justice Clarence Thomas.
Protesters gather outside the state Capitol to voice opposition to an abortion ruling, Friday, Sept. 23, 2022, in Phoenix. An Arizona court has ruled that the state can enact a near-total ban on abortion that has been blocked for nearly 50 years. The law was first enacted decades before Arizona became a state in 1912. (AP Photo/Matt York)
With only three years left until retirement, he was unsure whether to even run for office, but the controversy has led him to take a stand as a defender of judicial independence and the rule of law, as well as Arizona’s merit-based system of judicial selection, which has avoided the unseemly spectacle of judges running for office on partisan platforms and with tens of millions of dollars in out-of-state funding.
“This system is not designed to withstand political attack,” Bolick wrote in The Arizona Republic last month. “Judges seeking retention are at a severe disadvantage.” “Our judicial ethics limit what we can say, even prohibiting us from recommending each other,” he continued. “For these reasons, I will not be campaigning,” he said, instead relying on independent groups to educate voters.
Bolick’s abortion ruling is a prime example of judicial fortitude. It’s a testament to his integrity that he upheld a law that existed before Arizona became a state, knowing it would cause a political firestorm and jeopardize his career.
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The backlash against Judges Bolick and King is emblematic of a widespread ignorance, or even willful disregard, of the role of the judiciary. A fair trial protects minority rights and keeps the majority in check the excesses of the majority. When judges follow their own policy views or their best judgment of what decisions will be popular, the rule of law is undermined and subject to the whims of the political majority. This erosion of judicial impartiality seems to be exactly what critics want, so long as it serves their political agenda.
However, political issues should remain within the purview of the legislature, the institution most responsive to the will of the voters. Disgruntled citizens should focus their efforts on legislative change, as demonstrated by Arizona’s subsequent repeal of its outdated abortion law. Attempting to use the judiciary for political purposes distorts the role of the judiciary and ultimately endangers all citizens, regardless of their political allegiance.
Ironically, Bolick’s wife, Shawna, now faces the risk of losing her own office because of the tough political decisions made necessary by her husband’s judicial vote. Shawna Bolick was one of two Republican state senators who joined Democrats to repeal the 1864 law. A blanket ban is unpopular, including in her own district, and so is currently being contested in a primary.
The political challenges facing the Bolicks highlight the personal sacrifices required of judges in their quest for impartiality, and at a time when judicial decisions are increasingly subject to partisan scrutiny, it is crucial that judges put principle above politics.
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Bolick’s abortion ruling is a prime example of judicial fortitude. It’s a testament to his integrity that he upheld a law that existed before Arizona became a state, knowing it would cause a political firestorm and jeopardize his career.
Public confidence in our judiciary is a cornerstone of our democracy. Mr. Borick’s steadfast adherence to these principles, even at great personal and political cost, deserves our respect and support. The integrity of our judiciary and the preservation of constitutional order depend on it.
The aftermath of this abortion case highlights a critical moment for voters to assess the integrity of their judiciary, even when it is politically inconvenient. Arizonans rarely reject another term for a sitting judge. Only six judges have been removed since the state instituted retention voting in 1974, three of whom were removed in the last election amid uproar over the 2020 election. Will they do the right thing now?
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Tim Rosenberger is a law and policy fellow at the Manhattan Institute.
