State Supreme Court races aren’t always high-profile affairs, but the contest for a northern Kentucky-area seat on the high court has implications for abortion access, separation of powers between the three branches of government and how much politics should bleed into judicial races.
Joe Fischer, a Republican legislator known for his anti-abortion and conservative stances, is taking on nine-year incumbent Supreme Court Justice Michelle Keller in the race.
Fischer, of Ft. Thomas, penned Kentucky’s “trigger law,” which sought to automatically outlaw abortion in the state after the U.S. Supreme Court struck down Roe v. Wade. He also sponsored an amendment to the Kentucky constitution that would ensure no abortion rights are guaranteed in the state’s fundamental document.
A former prosecutor and appellate judge, Keller was appointed to the northern Kentucky Supreme Court district in 2013 by Democratic Gov. Steve Beshear. She was elected to a full eight-year term in 2014 and has been a justice during an era when legislators have repeatedly questioned the authority and makeup of the high court.
The composition of the Kentucky Supreme Court could look significantly different after the November election. Chief Justice John Minton is retiring, and four of the high court’s seven seats are up for election.
And if Fischer were to win the election, one of legislature’s staunchest conservatives would have an opportunity to shape the direction of the judiciary.
Reproductive rights battle shifts to states
Fischer has been clear that he disagrees with the previous judicial precedent that guaranteed abortion rights under the U.S. Constitution–Roe v. Wade–and he wants to prevent a similar ruling from providing reproductive rights under the Kentucky Constitution.
During a speech in 2021 outlining his proposal to add anti-abortion language to the state constitution, Fischer said he wanted to keep abortion rights from being “fabricated” in Kentucky.
“For several years, abortion proponents have been executing a strategy to persuade state courts that the same right to abortion discovered in the penumbra of the U.S. Constitution should also be fabricated in the respective state constitution,” Fischer said. “We cannot afford to allow abortion proponents in our state courts to invent state laws threatening our children. That is why we need a constitutional amendment now.”
Fischer did not respond to multiple requests for an interview.
During the 2021 speech, he compared the fight over abortion to the Kentucky Supreme Court’s initial ruling in 2020 that upheld Gov. Andy Beshear’s emergency powers during the coronavirus pandemic.
“Nowhere in the state constitution can you find this inherent power. But do you not think that it is possible that our Supreme Court might discover an inherent right to an abortion in the same constitution, unless the people of Kentucky say otherwise by this constitutional amendment?” he said.
After the initial ruling, the Republican-led legislature passed new laws limiting Beshear’s powers and the Supreme Court upheld the measures, despite a challenge from the governor.
Under Kentucky law, amendments to the state constitution must pass both the legislature and a statewide referendum. Voters will weigh in on Fischer’s proposed amendment this fall. The language is as follows:
Are you in favor of amending the Constitution of Kentucky by creating a new Section of the Constitution to be numbered Section 26A to state as follows: To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion?
Polling on abortion is mixed in Kentucky. A Pew Research poll from 2014 showed 57% of adults believe abortion should be illegal in most cases, meanwhile a survey conducted by Planned Parenthood said 65% of Kentuckians want “women to have access to all of the reproductive health care options available, including abortion.”
But the state consistently elects conservative lawmakers like Attorney General Daniel Cameron, U.S. Sen. Mitch McConnell and U.S. Sen. Rand Paul, who support extreme abortion restrictions. The one exception in recent history is Democratic Gov. Andy Beshear, who says he supports abortion rights that were guaranteed under Roe v. Wade–that is, up until the point a fetus can survive outside the womb.
Meanwhile, after the downfall of Roe, abortion rights advocates are suing in state court, arguing that Kentucky’s near-total ban on abortion is illegal under the state constitution because it threatens lives, health and right to privacy and self-determination.
Northern Kentucky University law professor Kenneth Katkin says the lawsuit and constitutional amendment could become even more consequential, depending on who gets elected to the Supreme Court.
“The older cases from before Roe v. Wade which were decided had previously held that there’s no state constitutional right to abortion. So that’s the starting point right now for any current Supreme Court if they want to decide the issue on a blank slate. And that’s where this judicial election makes a difference. But it’s going to take a lot more than just one justice,” Katkin said.
Katkin also said Fischer winning doesn’t necessarily change outcomes of cases, but erodes respect for the rule of law.
“I think judges who don’t talk like that, will tend to vote the same way sometimes as judges who do talk like that. But it also gives the notion that judges are simply politicians in robes, that judicial decision making is just politics by other means,” Katkin said.
Politicizing the judiciary
Fischer has represented House District 68 since 1999, and spent most of his legislative career in the chamber’s minority party. A member of the Federalist Society, a prominent conservative legal group, Fischer filed two high profile redistricting lawsuits on behalf of Republicans. When the GOP won control of the House for the first time in nearly a century in 2016, he became the chair of the powerful House Judiciary Committee.
In his announcement launching his campaign for the Kentucky Supreme Court, Fischer said his time on the committee provided him with “a unique perspective regarding the needs of Kentucky’s courts.”
Republican politicians in Kentucky have railed against the Kentucky Supreme Court for years, criticizing rulings that struck down GOP-sponsored laws like the pension “sewer bill,” medical review panels and Marsy’s Law.
Fischer has held multiple fundraisers during his campaign for the Supreme Court seat, featuring prominent Republican legislators like Senate President Robert Stivers, of Manchester.
Meanwhile politics have already crept into judicial races across the state. During the race for the western Kentucky Supreme Court seat in 2018, Republican Sen. Whitney Westerfield, of Crofton, sharply criticized the court, saying that changing the political makeup of the court was an important part of his campaign.
“We count on judges to uphold the law and apply the law as it’s written, but what they don’t get to do is legislate from the bench. But that’s happening,” Westerfield said during a speech at the Fancy Farm picnic in 2018. “Liberal activist courts and judges across the country are weaponizing our court system to do just that.”
Stivers has been open about his preference for judicial candidates who skew conservative, co-hosting a fundraiser for Franklin Circuit Court judge contender Joe Bilby earlier this year.
And during Keller’s run in 2014, the Boone County Republican Party ran an ad attacking her for a decision she made on the state Court of Appeals involving parental consent for abortions. The attack ad said Keller “allowed Kentucky doctors to perform secret abortions on teenage girls without parental consent.”
Justice Keller said there are many times when lawmakers are aggrieved by rulings and can be critical of the courts, but she said Fischer’s run takes it a step further and that he is motivated by “taking over the courts.”
“They said that they want to remove judges they feel are an impediment to their agenda, and they want to take over the court. That’s what’s happening. And that’s different than just criticizing the courts,” she said.
The politics of northern Kentucky
Northern Kentucky has been full of political surprises over the years.
In 2010, the region helped carry then-political neophyte Rand Paul to victory in the Republican primary for U.S. Senate over former Secretary of State Trey Grayson, a native of the region backed by party leaders.
In the 2019 race for governor, two of the region’s three counties swung in favor of Democrat Andy Beshear over incumbent Republican Gov. Matt Bevin, despite Bevin receiving endorsements from the counties’ top leaders.
And earlier this year, three influential Republican legislators were ousted during primary elections in wave of “Liberty” candidates running to the right of the party establishment.
Katkin, the NKU law professor, said these recent primary results were built on groundwork laid by the Tea Party a decade ago, and it might dictate voting choices during this year’s Supreme Court race.
“I think the Republican Party’s strength has long been northern Kentucky. So it has always been anomalous to me that Justice Keller has been able to keep getting elected in northern Kentucky, because the politics of this area are to the right of where she stands. But I think Fischer is really tapping into more of where the political energy in that part of the state is,” he said.
Though the region is dotted with predominantly Democratic cities like Covington and Newport, many of the recent wins for “Liberty” Republicans came from conservative areas like Boone County, one of the fastest-growing parts of the state. Katkin said in the current political environment, that energy might be enough to move the needle in a judicial election.
“When the courts move in that extremely conservative direction, I don’t know that they’re moving away from where the people are moving. It just seems like that they may actually be moving in tandem with one another,” he said.
The balance of power
Justice Keller said it’s normal for the three branches of government to act in natural tension with each other and that the judiciary has to settle disputes between the executive and the legislature.
But she said she fears the balance of power between the legislature and the judicial branch has come under threat in recent years because people increasingly expect courts to be political.
“It can happen on a fairly regular basis that the result that the law takes me to is not the one I may personally prefer. It doesn’t matter what I personally prefer. I’m a judge, I set that aside,” Keller said. “But the irony of this is that my opponent and others are talking about how they’re going to bring the Constitution back and about their strict interpretation of the Constitution.”
Though the Kentucky Constitution requires judicial races to be nonpartisan in Kentucky, Fischer touts his Republican credentials on the campaign trail. His campaign logo prominently describes the 23-year lawmaker as “The Conservative Republican.”
The state’s code of judicial code of conduct used to ban judicial candidates from making such political statements, but a federal appeals court struck down parts of the code in 2010, saying it restricted free speech too much.
Earlier this year, Fischer reached out to Kentucky’s Judicial Ethics Committee, which responds to inquiries about the code, asking a series of questions dealing with partisanship and running for judicial office in Kentucky.
“May a judicial campaign committee’s advertising include symbols closely associated with a political party in its advertising (i.e., democratic – donkey & republican – elephant)?” Fischer asked.
“No,” the committee responded, advising that such behavior would “‘render hollow’ Kentucky’s Constitutional requirement that judicial campaigns be nonpartisan.”
In its response, the committee also opined that soliciting or advertising endorsements from elected partisan officials would go against the code of conduct. However, the committee said “yes,” a candidate can advertise their policy positions “so long as that judicial candidate does not commit to ruling a particular way.”
Steven Voss, a University of Kentucky political science professor, said normally voters in the district would recognize a judicial race as nonpartisan, but Fischer has changed that with his rhetoric and advertising.
“If voters are given just a few buzzwords, a few cues or even a flyer about the judge, they can figure out ideological leanings,” Voss said. “When it ends up truly nonpartisan is when there’s so little attention to the race and so limited money for the campaigns, that they’re not even able to get the dog whistles.”
During a recent interview, retired Supreme Court Justice Bill Cunningham said judges should be shaped by experience, but legislators bringing their experiences to a judicial position can manipulate the balance of powers.
“We can’t undermine our third branch of government by controlling the Supreme Court, and in the past, the legislature understood this even if they didn’t agree with our rulings,” he said.
Cunningham said Fischer’s track record opposing abortion doesn’t disqualify him from being a good justice, but he has to leave his views in the legislature.
“When he jumps over to a judicial race, he has to leave that issue over there and run to be fair and impartial,” Cunningham said. “He can also personally dislike Roe v. Wade as a justice, but it can’t dictate his decisions in the court. That’s when it threatens the balance of powers.”
This story has been updated to add context about Kentucky’s Judicial Code of Conduct and an updated map of Kentucky’s Supreme Court districts.