Republicans are attempting to boot three Democratic justices from the Pa. Supreme Court — and for the first time, Dems are worried

HARRISBURG — Pennsylvania’s biggest race this election year won’t be on the primary ballot.

The candidates won’t have political parties listed. And they can’t even campaign to say what they will do if reelected.

Three justices on the state Supreme Court are up for retention in November, when voters will decide whether the judges should be retained for another 10-year term in what historically is an apolitical, low-turnout affair. This year, however, the races are some of Pennsylvania’s most-watched, as grassroots and establishment Republicans — including a rumored interest from President Donald Trump’s billionaire adviser Elon Musk — have already staked a claim in an effort to vote out the Democratic judges in hopes of building a GOP-controlled court by the 2028 presidential election.

The current makeup of the state Supreme Court is a 5-2 liberal majority.

Democratic Justices Kevin Dougherty, Christine Donohue, and David Wecht are all up for retention this year to serve another term on the powerful court. And for the first time, Democrats are worried about holding onto their seats.

The justices largely cannot campaign for their retention. They are prohibited by the state’s code of judicial ethics from speaking about how they would rule on certain issues that could come before the court.

“Unlike a lot of candidates, we’re not allowed to promise things that we’re going to do in the future, other than fair, impartial justice and to judge with integrity,” Wecht told rural Democrats at an event at the Pennsylvania Farm Show earlier this year.

If any of the justices do not win retention, the seats will likely remain vacant until the 2027 election. (Democratic Gov. Josh Shapiro could appoint someone to fill a vacancy, but his nominee would need to be confirmed by the GOP-controlled state Senate, which could prove challenging.)

What‘s more: If all three justices lose retention, the court would need to rule with only a four-person court of two liberals and two conservatives, which would be unlikely to reach majority decisions and could weaken the voice of Pennsylvania’s top court going into the 2028 presidential election, when the swing state could decide the next president yet again, experts said.

The biggest fear among Democrats is how much Musk, the world’s richest man, and other outside influences will affect the retention election, as judicial races become more politicized for a branch of the government that is supposed to remain impartial. Musk and GOP groups most recently spent more than $20 million in trying to elect a Republican justice to the Wisconsin Supreme Court, an ultimately unsuccessful effort. It is unclear whether Musk will invest in Pennsylvania’s Supreme Court election, but that has not stopped rumors that he will get involved.

“Elon Musk has already invested $1 million” in the race, Dougherty claimed during the Montgomery County endorsement convention in February. Campaign finance data will not be available for this race until September to verify Dougherty’s assertion, and Musk’s political action committee did not respond to a request for comment.

“He’s asking and recruiting young Republicans to register and make a pledge to toss the three of us out so that they can have a Republican court set for the elections of 2028,” Dougherty added in his plea to Montco Dems. “This is corruption at its finest. I’m here, asking you: … Please don‘t forget about the November general.”

Many Pennsylvania Republicans have been critical of the current state Supreme Court in recent years for its decisions during the COVID-19 pandemic, such as its backing of former Gov. Tom Wolf’s shutdown orders and its decision to extend mail voting by three days in the 2020 election due to U.S. Postal Service delays. Those decisions are part of the GOP’s argument today to oust the three justices.

New Pennsylvania GOP chair Greg Rothman, a state senator, has said the judicial races on the ballot are a top priority for the party. Grassroots organizer Scott Presler, who runs the Republican mail voting and voter registration organization Early Vote Action, posts on X every day to bring attention to the November retention election.

“If we all vote NO, they will vacate the bench, and there will be a special election in 2027,” Presler’s organization wrote in campaign literature. “We could create a Republican majority (5R-2D) in the Pennsylvania Supreme Court before the next presidential election in 2028.”

With the three Democratic justices on the bench, the state Supreme Court over the last decade has made landmark decisions that significantly affected the lives of Pennsylvanians, such as when it struck down Pennsylvania’s congressional districts as unconstitutionally gerrymandered, its rulings over the last few years on Pennsylvania’s new no-excuse mail voting law, and much more.

The three justices ran as Democrats in 2015 but will not have a party listed when voters are asked in November whether they should get another term.

Wecht, Donohue, and Dougherty were all elected in 2015 to fill open seats on the state Supreme Court. The court was in “disarray” when the three were elected, Donohue said at the Farm Show event, after several scandals led to the retirement or criminal conviction of former justices.

“What you have had for the past nine years are three Supreme Court justices who have followed the law, we have followed the Constitution, and we have always kept in mind that what our utmost job is to serve the citizens with integrity,” Donohue added.

The rulings before the three justices joined the court in 2015 — although they are still seen as precedential — are often viewed by lawyers as weaker than those decided by a full seven-person court, said Melissa Melissa Blanco, a litigation attorney at Obermayer Rebmann Maxwell & Hippel LLP who clerked for former Justice Thomas Saylor.

“It‘s easy to look at those [old] cases and say, ‘Hey, they shouldn’t have any precedential value’ or ‘They shouldn’t matter as much because only X amount of justices were on it,’” Blanco said. “When you have a full court deciding on something, it‘s a little bit more difficult to say.”

Only one Supreme Court justice has lost retention in Pennsylvania history. In 2005, Justice Russell Nigro, who ran as a Democrat, lost retention as part of what would become a governmentwide upheaval the following year over late-night pay raises approved by the state General Assembly for lawmakers, members of the executive branch, and judges, among other issues. Nigro told Spotlight PA he lost for a number of reasons, including opposition from Philadelphia’s political machine.

Traditionally, judicial retention races are so overlooked that the justices do not bother to raise money at all. All three justices have individually formed political action committees to fundraise for their retention.

“It puts the justices in such a precarious situation,” Blanco said of the unique nature of running for retention in Pennsylvania.

Donohue will need to retire at the end of 2027, which is the calendar year in which she turns 75. Pennsylvania approved a constitutional change in raising the mandatory retirement age from 70 to 75 in 2016. Dougherty is 63, and Wecht is 62.

Pennsylvania’s Supreme Court justices are paid $261,976 as of 2025, with an automatic cost-of-living increase added to their salaries each year.

Staff writer Katie Bernard contributed to this article.

Editor’s note: An earlier version of this article incorrectly reported who is eligible to contribute to a judicial retention race. There are no limitations beyond those currently detailed in state law. This story has also been updated to reflect that all three justices have formed PACs to fundraise for their retention.