Greg Weaver: Retaining state justices is the right thing to do

I’m no lawyer, and I don’t play one on TV or in the pages of this newspaper. But I have to say I agree with the 84% or so of attorneys surveyed by the Indiana State Bar Association who believe the three state Supreme Court justices on the Nov. 5 ballot should be retained.

Along with the survey, the leadership of the bar association also released a lengthy statement that appears to be a direct response to a slow-burning social media campaign that is urging voters to toss the justices off the court. That campaign calls for their ouster because of the court’s decision to uphold the near-total abortion ban approved by the Legislature in 2023.

As the bar association notes, it seems illogical to make a snap judgment about the justices solely on the basis of one decision. It’s more appropriate to assess their whole career as judges and then make a call.

Some liberal abortion-rights activists want to cast the Republican-appointed justices as conservative extremists who walk in lockstep with the GOP-controlled Legislature.

But that couldn’t be further from the truth. In fact, the five-member court is so middle of the road despite its all-Republican composition that former Indiana Supreme Court Justice Frank Sullivan, a Democratic appointee, earlier this year called them “flaming moderates.”

The reality is that the court can’t help it that the Legislature crafted a near-total abortion ban that happens to be legally acceptable under the state’s constitution. (The law grants exceptions for fatal fetal abnormalities, to preserve the life and health of the mother, and in cases of rape or incest.)

In a 4-1 decision, the state’s high court ruled that: “Article 1, Section 1 (of the Indiana Constitution) protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk, but the General Assembly otherwise retains broad legislative discretion for determining whether and the extent to which to prohibit abortions.”

Only three of the court’s five members—Chief Justice Loretta Rush and Justices Mark Massa and Derek Molter—are on the ballot for a retention vote this year. And all of them signed on to the majority opinion on the abortion law.

But given the judges’ track record and the nonpartisan nominating commission the state uses to select its justices, it stretches credulity to suggest that the decision was pure politics.

The selection process for the Indiana Supreme Court is nothing like the political circus that surrounds the U.S. Supreme Court, and Hoosiers should want to keep it that way to maintain appellate courts that are as apolitical as possible.

Of course, we all bring our own life experiences and biases to any decision we make. And I’m not naive enough to suggest that politics never come into play on Indiana’s high court. But the measure of a good state justice—much like a good journalist—is how hard they work to put those biases aside and offer a fair assessment based on the facts and the law.

Oddly enough, I was a newspaper reporter with Massa at The Evansville Press back in the days before he entered law school.

Through my brief conversations with him at that time and by his reputation since then, I’m pretty sure we wouldn’t agree on every political issue. But I also know him to be fair-minded, and I believe he and his colleagues are grounded in the rule of law.

That’s what I want in a state Supreme Court justice. Hoosier voters should, too.•

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Weaver is editor of the Indiana Lawyer. Send comments to gweaver@ibj.com.