Two Ohio Supreme Court Justices Rule for Top Donors Over 88 Percent of the Time

Justice French ruled for Constitutionally Limited Government in Zero of Eight Critical Cases, Justice Kennedy in Five of Eight

Columbus, OH – The 1851 Center for Constitutional Law shared research previously prepared for various citizen groups demonstrating that (1) Ohio Supreme Court Justice Judith French ruled for constitutionally limited government on zero of the eight critical occasions examined, while Justice Sharon Kennedy has ruled so on five of those eight occasions; and (2) Justice French has ruled in favor of her top 20 campaign contributors, when they have appeared before her, 91 percent of the time, while Justice Kennedy has ruled so 88 percent of the time.

The findings are prepared in response to citizen inquiries that have arisen as citizens are attempting to educate themselves on judges prior to the election.

“The Ohio Constitution is more protective of rights than the federal constitution, but Ohio’s judges aren’t enforcing it as such,” said Maurice Thompson, Executive Director of the 1851 Center. “We shouldn’t have to go to federal court every time we are serious about enforcing limits on government, or afraid that we will face a politically-connected opposition; but our high court will only improve if Ohioans are sufficiently educated on it.”

Justice French was appointed by Governor Kasich to replace the retiring Justice Stratton in late 2012. A summary of the 1851 Center’s findings regarding her rulings for and against constitutionally limited government and her rulings’ alignment with her top campaign contributors, are as follows:

• Justice French has ruled in a manner consistent with the protection of constitutional rights, advancement of liberty, and limiting of government in zero of the eight critical decisions identified.

• Justice French has been highly unlikely to check abuse by state or local governments or powerful interest groups when given the opportunity, and this is consistent with her expressed philosophy of placing her personal views of judicial restraint and majority power above constitutional limits on government.

• Top campaign contributors to Justice French appeared before her, directly as parties to the case, amicus curiae parties, or legal counsel for parties, on 43 occasions. Justice French ruled in favor of her top contributors on 39 of those occasions, or 91 percent of the time.

• By comparison, fellow Republican Justice Pfeifer, who does not receive large campaign contributions, ruled in favor of Justice French’s top contributors in these same instances on only 21 of 41 occasions, or 51 percent of the time.

• By comparison, Democrat Justice William O’Neill, who does not receive large campaign contributions, ruled in favor of Justice French’s top contributors in these same instances on only 26 of 43 occasions or 60 percent of the time.

• Justice French ruled in favor of the law firms who made major contributions to her on 22 of the 24 occasions upon which they appeared before here, or 92 percent of the time.

Justice Kennedy defeated Justice Yvette McGee-Brown in late 2012. A summary of the 1851 Center’s findings regarding her rulings for and against constitutionally limited government and her rulings’ alignment with her top campaign contributors, are as follows:

• Justice Kennedy ruled in a manner consistent with the protection of constitutional rights, advancement of liberty, and limiting of government in five of the eight critical cases identified.

• Justice Kennedy has been highly likely to check abuse by local governments when given the opportunity.

• Justice Kennedy has been unlikely to check abuse by the executive branch of state government and the powerful hospital lobby, when given the opportunity, and this somewhat differs from her expressed opposition to “government intrusion.”

• Top campaign contributors to Justice Kennedy appeared before her, directly as parties to the case, amicus curiae parties, or legal counsel for parties, on 41 occasions. Justice Kennedy ruled in favor of her top contributors on 36 of those occasions, or 88 percent of the time.

• By comparison, fellow Republican Justice Pfeifer, who does not receive large campaign contributions, ruled in favor of Justice Kennedy’s top contributors in these same instances on only 19 of 40 occasions, or 48 percent of the time.

• By comparison, Democrat Justice William O’Neill, who does not receive large campaign contributions, ruled in favor of Justice Kennedy’s top contributors in these same instances on only 24 of 41 occasions or 59 percent of the time.

• Justice Kennedy ruled in favor of law firms who made major contributions to her on 26 of the 30 occasions upon which they appeared before her, or 87 percent of the time.

As to issues, the 1851 Center’s findings demonstrate that when presented with the opportunity on critical cases of constitutional principle, Justice Kennedy supported religious liberty, free speech, property rights, government transparency, and political association and speech. In the same cases, Justice French opposed these principles.

Meanwhile both Justices, when presented with the opportunity, supported unilateral Affordable Care Act Medicaid Expansion by the Governor, supporting forced health care by state hospitals, refused to support parental rights to make health care decisions for their children, and supported citizen-taxpayer standing to enforce the structural limits on government.

As to the alignment “while we have observed what we view as some irregularities over the past few years, and expected to find a correlation between campaign contributions and case outcomes. We did not expect the correlation to be so stark,” added Thompson.

The 1851 Center analysis attempted to explain away this correlation by controlling for ideological alignment (i.e. “pro-business” views) and by comparing Justices French and Kennedy’s rulings with those of Justice Pfeifer (Republican) and O’Neill (Democrat), neither of whom accept significant campaign contributions. However, the analysis demonstrates that rate of rulings in favor of non-ideologically-aligned donors, such as law firms, are just as high. Meanwhile, Justices Pfeifer and O’Neill both vote for these same contributors significantly less frequently.

Thompson concluded “at this time, we don’t have an explanation for the high correlation; but we hope the Justices do. They should explain this rate to the public with something other than ‘we just call it as we see it.'”

Read The 1851 Center’s full research memorandum is available HERE.

Important Disclaimers: The 1851 Center for Constitutional Law does not support or oppose candidates, and nothing in this publication or elsewhere should be construed as an endorsement of or opposition to any candidate. We recognize that this research is released close to an election; however this is to collect the maximum number of data points, including very recent contributions to campaigns and decisions by the Ohio Supreme Court. We also recognize that we have not analyzed the records of the two Justices’ opponents; this is because we are institutionally committed to focusing on judicial incumbents with record that permit analysis – – neither challenger has a record as an appellate judge. We express no opinion on those merits of those opponents.

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