Professor Gary S. Gildin addresses threat to constitutional rights in upcoming election for retention of three Pennsylvania Supreme Court justices

CARLISLE, Pa.—Professor Gary S. Gildin served as a panelist in the program “Big Money, Big Questions: The Future of Pennsylvania’s Supreme Court,” sponsored by the Carlisle and Dickinson College branches of the American Association of University Women.

Gildin argued that the threat level in the current retention election for three Justices of the Pennsylvania Supreme Court is highest for individual constitutional rights. Structurally, in the best of circumstances, retention elections are an obstacle to non-partisan decision-making, especially for anti-majoritarian rights.

Gildin offered that the current retention election poses a situational threat to safeguarding constitutional rights because of the confluence of five forces: 1) The politicization of the federal judiciary, with rights-minimizing interpretive theories of originalism and textualism, has thrust state courts enforcing rights protected by state constitutions to the frontline as the protectorate of civil liberties; 2) The political stakes, with three Supreme Court justices up for retention in a court that currently has a 5-2 majority of justices originally elected as Democrats; 3) An off-cycle election year lacking races that will turn out large numbers of voters; 4) Infusion of vast sums of outside money aimed at defeating retention; and 5) Misleading advertising directed at an already-polarized electorate that confirms existing belief-systems and provokes outrage.

Professor Gary S. Gildin teaches Civil Liberties Litigation as well as Protection of Individual Rights Under State Constitutions. He is the author of “Religious Freedom Under Article I Sections 3 and 4 of the Pennsylvania Constitution,” published in The Pennsylvania Constitution: A Treatise on Individual Rights and Liberties, Ken Gormley and Joy G. McNally eds. (Second Edition 2020) and contributed to the Brief of Amici Curiae Law Professors David S. Cohen, Gary S. Gildin, Seth F. Kreimer, Jules Lobel, Robert Reinstein in William Penn School District et al. v. Pennsylvania Department of Education et al., No. 587 M.D. 2014 (Commonwealth Court of Pennsylvania), in which Judge Renee Cohn Jubelirer ruled that the system of funding public education violated the fundamental right to meaningful education under Pennsylvania Constitution.