Some progressives are publicly calling for voters to oust two Supreme Court judges up for a retention vote next month over their dissent in a lawsuit placing abortion on the November ballot
BY: JOSH MERCHANT
If three Missouri Supreme Court judges had their way, voters would not have a say on whether to legalize abortion statewide on this year’s general election ballot.
This November, those voters will have the option to use a power they’ve never used before — to boot two of those judges off the state’s high court.
Abortion rights groups turned in 380,000 signatures this summer for a state constitutional amendment that would establish a right to reproductive health care.
But then a Cole County circuit court judge ruled that their proposed amendment was too vague. That sent the case to the Missouri Supreme Court, which ultimately ruled that it met legal requirements in a 4-3 decision.
Now, the abortion amendment will appear on the ballot — alongside retention votes for two of those judges who dissented in the ruling that ultimately put the issue to a statewide vote.
To abortion-rights advocates like Jess Piper, it’s “instant karma.”
She is the executive director of Blue Missouri and ran unsuccessfully in 2022 to represent a district north of St. Joseph in the Missouri House of Representatives.
“You vote against us, and we can vote to not retain you,” she said. Piper will be voting not to retain Missouri Supreme Court judges Kelly Broniec and Ginger Gooch, who dissented last month in the decision to keep abortion on the ballot.
But some political and legal experts say advocates like Piper should brace for times when judges they like might get tossed off the court for their rulings.
It’d be a gamble. Kicking two judges off the Supreme Court is unprecedented in Missouri and would leave two open seats for the next governor to fill. Mounting a political campaign to remove two judges from the court, if successful, could shake the foundation of an institution that has been insulated from politics for 80 years.
“Be careful what you wish for,” said former state Supreme Court Chief Justice Michael Wolff. “You don’t know what you’re going to get on the other side.”
What judges Broniec and Gooch argued on the abortion petition case
The Supreme Court’s Sept. 10 decision put abortion back on the ballot.
Judges on both sides of the opinion contend the legal decision had nothing to do with abortion.
Rather, they say the case turned on a 1997 law that requires initiative petitions specify what parts of Missouri statute or the state constitution would be repealed by a petition.
Anti-abortion groups said that Amendment 3 was not specific about what Missouri laws would be repealed by establishing a right to reproductive health care.
Abortion-rights groups, on the other hand, said that wasn’t required because the abortion amendment doesn’t actually repeal any laws — it simply adds a guarantee in the Missouri Constitution of access to abortion. If the amendment passes, Missouri’s abortion ban passed by the General Assembly will remain in effect until it’s challenged in court.
Ultimately, the courts could overturn some abortion restrictions — not the amendment itself.
The state Supreme Court ruled that the abortion amendment met the necessary legal requirements to be on the ballot. Judge Paul Wilson also wrote in the majority opinion that requiring a petition to specify a list of laws to be repealed would be overly burdensome, making it functionally impossible to amend the constitution in the future.
In her dissenting opinion, Broniec wrote that the 1997 law requiring petitions to specify what laws would be repealed also includes laws that would be invalidated.
The abortion amendment clearly contradicts a handful of existing Missouri laws, she said, including the abortion ban that went into effect in June 2022, a law requiring a parent’s consent for minors to receive an abortion and a law requiring a 72-hour waiting period.
She said that this amendment — and any future amendment — wouldn’t have to list out every possible law that could be repealed. But, she argued, it should have listed the ones that were most obvious.
Gooch agreed with Broniec, as did Judge Zel Fischer, who is due to retire in 2033.
Both Gooch and Broniec declined to comment for this story. They are prohibited from publicly commenting on court issues under the state’s judicial code of conduct.
The 1940 ‘Missouri Plan’ to keep politics out of the Supreme Court
Unlike many other states, Missouri does not directly elect members of its Supreme Court. And to some experts, that’s a good thing.
The system of judge retention elections — rather than contested elections between two candidates — was created by an initiative petition in 1940 in response to an increasingly politicized court.
“There was a very ugly Missouri Supreme Court race between a Boss (Tom) Pendergast candidate and somebody else,” said Wolff, who is also former dean of St. Louis University School of Law.
Pendergast was a political boss in the early 20th century who controlled Kansas City Hall, the police department and even some statewide elections.
“If you wanted to be a judge in Jackson County or even on the Supreme Court of Missouri,” Wolff said, “a person you needed to go see was Boss Tom. That didn’t necessarily mean that you were going to be the best judge.”
But legal scholars at the time argued for a way to hold judges accountable when they misbehave or perform incompetently.
That created the “Missouri Plan” that nine other states copied and that 10 more followed roughly.
A judicial nominating commission — the chief justice, three members of the Missouri Bar Association and three nonlawyers picked by the governor — creates a list of potential nominees.
The governor then picks a nominee from that list to serve on the Supreme Court for one year before facing a retention election.
Judges who are retained face a retention election every 12 years until they retire at age 70.
No campaign to kick out a Supreme Court judge in Missouri has ever been successful.
Peverill Squire, a political science professor at the University of Missouri, said that although the governor has some say in who gets nominated, the nominating commission has successfully protected the court from partisan politics for the most part.
Gov. Mike Parson “has not been particularly aggressive in that regard,” he said. “They do have to go through the judicial nominating commission that might take some of the edge off of the heavy partisanship.”
Retention races can be a flashpoint for more partisan politics
Piper posted a video to TikTok shortly after the initiative petition Supreme Court decision, calling on voters to not retain Gooch and Broniec. The video has garnered more than 13,000 likes and 1,600 shares. Since then, she said she has met with voters who told her they wrote down the judges’ names so they’d remember in November.
“They’re really angry,” she said. “We didn’t just do the job, we killed it — 380,000 signatures when we only needed 180,000. It angers people across the political spectrum because you don’t have any right to take away my voice.”
Even if voters toss out the judges, Parson’s probable successor, Republican governor candidate Mike Kehoe, likely would replace them with two conservatives.
“He would appoint people in much the same manner that Parson did,” Piper said.
A Ballotpedia study in 2020 found that only three judges had lost retention out of 155 elections across the country since 2008. The other 98% percent won their races.
In nearby Iowa, voters removed two judges from the Supreme Court when they were up for retention in 2010 after the court unanimously overturned the state’s ban on same-sex marriage in 2009.
A conservative Missouri group attempted to remove Supreme Court Judge Richard Teitelman in 2004. The campaign argued that Teitelman was opposed to the death penalty and in favor of abortion, and that he opposed the right to firearms.
Missouri Supreme Court judges are prohibited under the code of judicial conduct from making any public statements on how they would rule on any given issue. If they do, they must recuse themselves from any case involving those issues.
That backs judges into a corner in those targeted campaigns where they can’t effectively defend themselves against claims that they support or don’t support an issue.
“It was a campaign generated by the (prospective) speaker of the House,” Wolff said of the 2004 retention campaign. “He was targeting some districts where they were trying to gin up the conservative voters. I don’t think they knew or cared who Judge Teitelman was, but they could get people to the polls.”
About the Supreme Court judges on your ballot
Kelly Broniec
Broniec was appointed to her position in 2023 by Missouri Gov. Mike Parson to replace retiring Judge George Draper III. She is facing her first retention election as Supreme Court judge to serve for a 12-year term.
Originally from Montgomery County, Broniec worked for a decade as a prosecuting attorney, then served for 17 years as a judge between the Montgomery County Circuit Court and the Eastern District Court of Appeals.
The Missouri Judicial Performance Review Committee said that Broniec meets performance standards.
Ginger Gooch
Gooch was appointed to the state Supreme Court judge in 2023 by Missouri Gov. Mike Parson to replace retiring Judge Patricia Breckenridge. She is facing her first retention election as Supreme Court judge to serve for a 12-year term.
Gooch served for one year as a judge on the Southern District Court of Appeals before her appointment to the Supreme Court. She was raised in Springfield and worked for 21 years as an attorney at Husch Blackwell LLP as general counsel for schools, hospitals and businesses. She has successfully defended employers against discrimination claims.
She has also worked as a Sunday school teacher and was involved with the parent-teacher association at her son’s schools.
The Missouri Judicial Performance Review Committee said that Gooch meets performance standards.
This article first appeared on Beacon: Missouri and is republished here under a Creative Commons license.