Pro-abortion activists are attempting to remove two esteemed jurists from the Arizona supreme court for daring to do their jobs.
Pro-abortion activists are attempting to remove two esteemed jurists from the Arizona supreme court for daring to do their jobs.
W hen the U.S. Supreme Court overturned Roe v. Wade, it returned balance to our constitutional order. As most of us learned in elementary school, the legislature passes a bill, the executive signs it into law, and, at times, the judiciary rules on its legality.
Yet, it seems many voters need a remedial lesson in civics, especially in the Grand Canyon State. Pro-abortion activists are attempting to remove two esteemed jurists from the Arizona supreme court for daring to do their jobs.
Back in April, the statehouse in Phoenix was sent into a tizzy when the high court soberly and correctly ruled that a strict Civil War–era abortion law remained on the books and, thus, was enforceable. The decision didn’t reflect the justices’ views on abortion one way or the other. It simply reflected the fact that the old law had never been repealed — something the Arizona house and senate could change any time they wanted.
“A policy matter of this gravity must ultimately be resolved by our citizens through the legislature or the initiative process,” Justice John Lopez wrote for the majority. “Today, we decline to make this weighty policy decision because such judgments are reserved for our citizens. Instead, we merely follow our limited constitutional role and duty to interpret the law as written.”
Just so. The Arizona supreme court tossed the hot potato to the state legislature where it belonged, much as the U.S. Supreme Court did with Roe v. Wade. Democrats were understandably outraged, but that was nothing compared with the panic among Republicans.
Back in 2022, then–gubernatorial candidate Kari Lake called the 1864 ban “a great law that’s already on the books.” When Lopez’s opinion was issued, Lake — now running for Senate — changed her tune. “This is a very personal issue that should be determined by each individual state and her people,” she wrote on X. “I oppose today’s ruling.”
Donald Trump applauded Lake’s flip-flop. “The Governor and the Arizona Legislature must use HEART, COMMON SENSE, and ACT IMMEDIATELY, to remedy what has happened,” Trump posted on Truth Social.
After a few weeks of acrimonious debate, Arizona’s legislature stepped up and repealed the 1864 territorial law well before its enforcement deadline. Balance was returned to the constitutional order.
But progressive activists refuse to take the win. They insist the abortion decision reflects the majority’s policy preferences rather than the law, and they want to punish the justices involved.
Justices Clint Bolick and Kathryn King, both of whom joined the majority, are up for retention elections in November, and the left wants them punished. The activist group Progress Arizona has launched a “Vote Them Out!” campaign to achieve this shabby goal.
Arizona is one of 20 states that hold retention elections. After a justice serves for at least two years, an uncontested yes-or-no election is held. If retained, the justice serves a six-year term. In Bolick’s case, he would only serve half of an additional term because of the court’s mandatory-retirement age.
This merit system worked as intended, at least until 2022, when activists cynically misused the retention process to remove two Maricopa County justices who’d refused to rubber-stamp their ideological preferences. This year, they’re targeting the state supreme court.
Both Bolick and King have sterling legal credentials, with the former garnering a national reputation. Prior to joining the court, Bolick served as vice president for litigation at the Goldwater Institute and the Institute for Justice. He has written dozens of books and has litigated in support of school choice, private-property rights, freedom of speech, and federalism, and against racial classifications and government subsidies. Bolick also is the only independent ever appointed to the Arizona supreme court.
Several of Bolick’s decisions repealed policies he supports. Why? Because he’s a justice, not a policy-maker — a principle Progress Arizona refuses to understand.
The retention system was designed to ensure merit and legal ethics; it cannot withstand political attacks. Justices Bolick and King can’t raise campaign funds, can’t endorse another justice’s retention, and are limited in their public statements.
These ethical rules don’t apply to Progress Arizona, which is aggressively raising funds and posting campaign screeds.
Bolick ably defended his record in an op-ed published in the Arizona Republic.
“As a judge I have never ruled on the basis of politics — apparently, to my current detriment,” he wrote. “I would rather go down in electoral flames than to compromise my constitutional oath.”
By doing its job, the Arizona supreme court made things uncomfortable for the state’s politicians. That’s democracy for you. But neither Bolick nor King should be punished for insisting that the politicians do their job as legislators.