An injudicious process: What would have happened if PA Supreme Court justices didn't get retained

On Tuesday, Pennsylvania voters decided to retain three state Supreme Court justices for additional 10-year terms on the state’s highest court.

The question of whether to retain Justices Christine Donohue, Kevin Dougherty and David Wecht for new terms attracted national attention – and millions of dollars in political spending. 

While it’s rare for justices running in retention elections not to be retained, it’s not unprecedented. To date, Supreme Court Justice Russell Nigro is the lone Pennsylvania justice to lose a retention election, which occurred in 2005 following the General Assembly’s pay raise scandal.

However, if that had occurred on Tuesday, it could have created a complicated and drawn-out process to fill any potential vacancies. 

If voters had opted to not retain the three justices, Donohue, Dougherty and Wecht would finish their current terms on Dec. 31, 2025. 

There would be no special elections to fill the seats once they become vacant on Jan. 1, 2026. According to the Pennsylvania Constitution, Gov. Josh Shapiro may appoint justices to fill the vacancies created by the retention elections; however, any appointment would require approval from two-thirds of the GOP-controlled state Senate. 

Given that Pennsylvania has a divided state legislature and is now more than four months behind on the state’s June 30 budget deadline without being able to approve a spending plan for the 2025-2026 fiscal year, approving appointments for three separate seats on the Pennsylvania Supreme Court would have been a heavy political lift.

If the state Senate approved the appointees, their terms would end “on the first Monday of January following the next municipal election more than ten months after the vacancy occurs or for the remainder of the unexpired term, whichever is less,” according to the state constitution.

In a scenario where the three justices lost their retention elections and gubernatorial appointees fail to gain Senate approval, the next judicial elections would have occurred in 2027 during the state’s next municipal election.