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By Marilyn Odendahl
The Indiana Citizen
November 1, 2024

The effort to prevent three Indiana Supreme Court justices from falling short in November’s retention vote appears to be organized and strong, but worries continue over the grassroots countereffort to remove the trio for their decision which let the state’s near-total abortion ban take effect.

Lawyers have been heavily involved in urging voters to retain Chief Justice Loretta Rush and Associate Justices Mark Massa and Derek Molter, who are on the ballot this election. Some attorneys have written columns for newspapers and blogs in support of the three justices, the Indiana State Bar Association and its leaders are advocating for the justices’ retention, and other attorneys have formed the Committee to Preserve the Indiana Supreme Court political action committee to promote retention through a social media campaign.

Support for retaining the three justices has also come from the Indiana Chamber, which typically does not endorse judges. In a statement last week, the chamber’s nonpartisan political action program, Indiana Business for Responsive Government, said tossing the justices from the bench because of their rulings “threatens the business-minded and pragmatic environment that sets Indiana apart from other states when it comes to the certainty needed for continued economic growth.”

Deborah Daniels, a retired Indianapolis attorney and chair of the court preservation PAC, reiterated a common argument among the pro-retention crowd that booting the justices would politicize the state’s Supreme Court. She shied away from calling this a pivotal moment for the Indiana judiciary, but she said a successful anti-retention vote would inject politics into the high court, which would “be a disaster” by upending the current non-politicized Supreme Court.

“If you have a situation where the public thinks every time they don’t like a decision by the Supreme Court, they can kick off justices, then gradually, over time, that’s going to impact the independence of the judiciary,” Daniels said. “I hate to suggest this, but it’s possible that they’d have to start looking over their shoulder and tempering their decisions based on likely public reaction and whether they get kicked off the court.”

Much of the anti-retention movement is percolating on the internet and social media, where warnings about politicizing the court or setting a dangerous precedent appear to struggle to gain traction.

For example, the responses to an October blog post written by Sheila Kennedy, attorney and former executive director of the Indiana Civil Liberties Union, illuminated the anger at the Indiana Supreme Court. Although Kennedy advocated for retention and said people should direct their anger over Indiana’s new abortion law at the state legislature and not the Supreme Court, some readers were not swayed, asserting the Supreme Court is “a tool of the far-right Republican Party” and the three justices “will not protect women and children in Indiana.”

Moreover, some citizens against retention seem comfortable with the idea of regularly exercising their power to unseat a justice. As one reader of Kennedy’s blog said, if the new justices are “even crazier jurists … just keep voting no against retaining judges.”

 ‘Everybody seems pretty upset’

The anti-retention effort is being fueled by anger over the Indiana Supreme Court’s ruling in Members of the Medical Licensing Board of Indiana, et al., v. Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc., et al., 22S-PL-338. Issued in June 2023, the majority opinion found Senate Enrolled Act 1, which prohibits abortions except in cases of rape, incest, fetal anomaly, and protection of the life of the mother, was constitutional.

Molter wrote the opinion with Rush and Massa joining. Proponents of retention point out the majority also held that Article 1, Section 1, of the Indiana Constitution protects a woman’s right to an abortion to protect her from a serious health risk or death.

However, Justices Geoffrey Slaughter and Christopher Goff split with the majority – and each other – on the constitutional issue. Slaughter asserted the court should not have even considered the constitutionality of law in this case, while Goff argued the constitutional protection might be broader than what the majority determined. “There’s a reasonable likelihood that Article 1, Section 1’s guarantee of ‘liberty’ includes a qualified right to bodily autonomy,” he wrote.

Sonia Leerkamp, vice president of the League of Women Voters of Brown County and a former Hamilton County prosecutor, echoed the concern within the legal community of unseating the three justices solely on the basis of one ruling. Even so, she noted, “everybody seems pretty upset” about politics and the laws being passed.

“I have friends who are just very upset and, I think, they think that it would be a signal to the state on how they feel,” Leerkamp said. “If Indiana’s legislature will not provide the opportunity for a referendum on this issue, then, I think, the people out there feel like this is their only remedy … to not retain these three justices who participated in this issue.”

The preserve our court PAC was started to advocate for retention, because of the pervasiveness of the counter movement, Daniels said. None of the justices are involved with the bipartisan PAC, she said, and the money raised is being used to pay for the social media campaign. She did not know how much money had been collected to date.

After the Nov. 5 election, Daniels said she expects the PAC will be dissolved since it was created for the specific purpose of keeping the three justices on the bench. However, she did add, the PAC could possibly continue by shifting its focus to educating the public about the judiciary as a whole.

Daniels agreed the retention vote has become “kind of a proxy” for a public referendum on abortion, but a victory for the anti-retention movement could cause chaos on the Supreme Court. In particular, she said, justices could change from determining the constitutionality of state laws to legislating from the bench.

When the justices become subject to the political winds, Daniels said, “that’s when you get decisions that have less to do with the Constitution and interpretation of the law and more to do with judicial legislating.”

Making a decision about retention

Women4Change and the Our Choice Coalition PAC, two prominent nonprofits advocating for women, are remaining silent on the retention issue. Neither have spoken out regarding the three justices and both told The Indiana Citizen that they are not planning to take a position.

Even so, Liane Groth Hulka, co-founder and board chair of Our Choice Coalition, highlighted what many see as the potential to remake the state Supreme Court by voting for the Democratic gubernatorial candidate Jennifer McCormick.

“We have no doubt that if our endorsed candidate, Jennifer McCormick, were elected governor, she would fill any court vacancies with judges who would work to protect reproductive health care, including abortion,” Hulka wrote in an email.

Hoosier Action, an independent community organization based in New Albany, has been trying to gather information on the three justices to help educate Hoosiers before they vote, but, as the nonprofit’s Tracey Hutchings-Goetz noted, getting an understanding of the judicial process and the work the justice do can be difficult.

Voters, Hutchings-Goetz said, often have little knowledge about retention and, in addition to reading whatever news articles they can find, might talk to any friend who is a lawyer to get some insight. She also recommended that voters should consider the background and experience of both the justice and the governor who appointed him or her to the bench.

Regardless of the outcome of the retention vote, Hutchings-Goetz, communications and policy director for Hoosier Action, would like to see Hoosiers stay engaged and continue learning about the state courts.

“There has been a decades-long political project to move and shift more and more decision making into the state level,” Hutchings-Goetz said. “As a result of that, I hope that more people will look at the state Supreme Court, the state constitution as well as (courts) at the local level.”

Dwight Adams, an editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and worked as a planner for other newspapers, including the Louisville Courier Journal.

The Indiana Citizen is a nonpartisan, nonprofit platform dedicated to increasing the number of informed and engaged Hoosier citizens. We are operated by the Indiana Citizen Education Foundation, Inc., a 501(c)(3) public charity. For questions about the story, contact Marilyn Odendahl at marilyn.odendahl@indianacitizen.org.