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A More Modest Ohio Supreme Court:

Several years ago, Ohio Supreme Court races were fiercely contested. Industry, labor and various legal groups sponsored vicious advertisements attacking candidates for the court and justices seeking re-election. One reason for this was because the Ohio Supreme Court had become very active in contentious policy disputes, ranging from education to tort reform. The court held the state's system for education funding unconstitutional four times, repeatedly invalidated legislatively enacted tort reform measures, and endorsed expansive theories of tort liability. With so much at stake, it was inevitable that interest groups would seek to influence the outcome of judicial elections.

In the last few years, however, the Supreme Court has backed away from this aggressive posture, largely due to changes in court personnel. The court has abandoned its effort to force the legislature to rebuild the state school funding system from the ground up, and has upheld legislative education reforms against constitutional challenge. It has trimmed back its most expansive tort liability rulings and now rejects most constitutional challenges to legislatively enacted tort reforms, such as caps on non-economic and punitive damages.

This change in the Ohio Supreme Court is documented in a new white paper I co-authored with my lovely wife, Christina, for the Federalist Society, A More Modest Court: The Ohio Supreme Court's Newfound Judicial Restraint, released today. The paper seeks to show that across a wide-range of issues, the Court has become more deferential to the legislature and less likely to impose its policy preferences on the state.

My own view is that this change in the Court's approach has greatly lessened the stakes in Ohio Supreme Court elections. Two justices are up for re-election this year, but we are not seeing the flood of outside advertisements that aired in prior election years. As the court has become more modest, judicial races have become less contentious.

While the Court is not the hot-button political issue it was in the past, the outcome of these judicial elections will affect the future course of the Court, and it is possible the Ohio Supreme Court could return to its old ways. While the Court is nominally all Republican (judicial candidates run in partisan primaries), it is divided 4-3 and 5-2 on many key issues, including the constitutionality of legislative limits on tort remedies, local home rule, and the application of Ohio election laws. As a consequence, this year's Ohio Supreme Court races are worth watching.

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