Abortion case could cost judges their jobs for ruling correctly

The uproar over the Arizona Supreme Court’s decision this past April to uphold the state’s 1864 abortion law has laid bare a profound misunderstanding of the judiciary’s role in our democracy. In April, the court ruled 4-2 (with one justice recused) that the old law’s complete ban on abortion, enacted when Arizona was still a territory, sprang back into place once the U.S. Supreme Court overturned Roe v. Wade in its June 2022 Dobbs decision. A 15-week restriction that the state legislature passed just ahead of that federal ruling didn’t supersede that earlier law, the state court found, using legal reasoning that wouldn’t have been remotely controversial if the underlying case had been about, say, insurance contracts. 

The majority relied on clear language in the 2022 law saying that this new legislation didn’t "repeal, by implication or otherwise" the territorial ban. The court concluded that "the legislature made its intent known," in part through "an unwavering intent since 1864 to proscribe elective abortions." "The legislature has demonstrated its consistent design to restrict elective abortion to the degree permitted" before Dobbs overturned Roe. 

But now the majority has drawn intense criticism in an election year when Democrats have seized on abortion as one of the few issues that seem to benefit them nationwide. Justices Clint Bolick and Kathryn King face hotly contested retention elections this November as Democrats see an opportunity to shift a court all of whose members were appointed by Republican governors.  

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Bolick, whom one of us (Shapiro) has known for more than two decades, has long been in the crosshairs of left-wing activists for his libertarian streak, willingness to dissent and friendship with Supreme Court Justice Clarence Thomas.  

He had been wavering on whether to even stand for retention because he’s only three years away from mandatory retirement, but this controversy spurred him to stand up for judicial independence and the rule of law. And also, for Arizona’s merit-based judicial-selection system, which has avoided the unseemly spectacle of judges running on partisan platforms and amidst campaigns with tens of millions of out-of-state dollars. 

"The system is not built to withstand political attacks," Bolick wrote in the Arizona Republic last month, "and judges seeking retention are at a massive disadvantage." "Our judicial ethics limit what we can talk about, and even prohibit us from endorsing each other," he continued. "For those reasons, I will not have a campaign," relying instead on independent groups to educate voters. 

Bolick’s decision in the abortion case exemplifies judicial fortitude. Upholding a law that predates Arizona’s statehood while knowing that it would ignite a political firestorm and jeopardize his career is a testament to his integrity.  

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The backlash against Bolick and King is emblematic of a broader ignorance or willful disregard for the judiciary’s role. Honest judging protects minority rights and maintains a check on majoritarian excess. If judges either followed their own policy views or their best judgment of what decision would be popular, they would undermine the rule of law, making it subject to the political majority’s whims. This erosion of judicial impartiality is precisely what critics seem to desire, so long as it benefits their political agendas. 

But political questions should remain within the legislature’s purview, the branch most attuned to the electorate’s will. Dissatisfied citizens should focus their energies on legislative change, as demonstrated by Arizona’s subsequent repeal of the old abortion law. Attempting to co-opt the judiciary for political purposes distorts its role and ultimately endangers all citizens, regardless of political allegiance. 

Ironically, Bolick’s wife Shawnna now faces the loss of her own public office because of the tough political decision her husband’s judicial vote necessitated. Shawnna Bolick was one of two Republican state senators who joined with Democrats to repeal the 1864 law — a complete ban is unpopular, including in her district — so now she’s being primaried.  

The political challenges faced by both Bolicks highlight the personal sacrifices demanded of judges committed to impartiality. At a time when judicial decisions are increasingly scrutinized through a partisan lens, it’s vital that judges put principles ahead of politics.  

Public confidence in the judiciary is a cornerstone of our democracy. Bolick’s unwavering commitment to these principles, even at great personal and political cost, deserves our respect and support. Our judiciary’s health and our constitutional order’s preservation depend on it. 

The aftermath of this abortion case reveals a critical moment that asks voters to reward judicial integrity even when it’s politically inconvenient. Arizonans rarely deny a sitting judge another term; only six have been unseated since the state adopted its retention-election system in 1974, but three of those were last cycle in the fallout over the 2020 election. Will they do the right thing now? 

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Tim Rosenberger is a legal policy fellow at the Manhattan Institute.