Illinois Republicans look to gain control of the state Supreme Court this election
Illinois Republicans last controlled the state Supreme Court the same year the former John Hancock building opened along North Michigan Avenue, and the Chicago Cubs infamously blew the National League pennant.
History buffs will recognize that year as 1969. In other words, it’s been a long time.
But this November, that 53-year string of political futility could end if Republicans thread the electoral needle and win elections for two open Supreme Court seats that cover big swathes of suburban Chicago.
Democrats hold the advantage in these elections because, last year, they redrew the court’s boundaries for the first time in 58 years — and they appeared to do so with one goal in mind: to retain control of the state’s highest court for at least another decade.
Still, these two down-ballot elections hold enormous stakes.
Democratic losses could imperil existing state and local laws dealing with abortion, gun control and union rights and throw a wrench into a potential second term for Gov. JB Pritzker should he defeat Republican Darren Bailey this fall.
And for Bailey, a friendly Supreme Court could amount to an important backstop against a Democratic-led General Assembly should he be the winner in November.
The importance of it all is not lost on the first-term governor.
“I think it would be terrible if the Republicans who want to take away people’s rights win those Supreme Court seats,” the governor said. “That would take away, I think, many of the notes of progress that we’ve made over many years: standing up for workers rights, standing up for women’s rights, making sure that we’re keeping people safe.
“These are all things that the Supreme Court has made decisions about that a switch in the court would allow them to overturn,” he said.
In a fundraising pitch to donors earlier this month, the state Republican Party went so far as to say the court elections are “MORE important to fixing our state” than even elections for governor or Congress — a concession, perhaps, that Bailey and the GOP’s congressional prospects in Illinois may be looking iffy this fall and that the court is where all the political marbles are at.
In one match-up, former Lake County Sheriff Mark Curran, a Republican, is running against Democratic Lake County Judge Elizabeth “Liz” Rochford in the 2nd Supreme Court district. That seat represents Kane, Lake and McHenry counties as well as DeKalb and Kendall counties.
The race for the 3rd district pits appointed state Supreme Court Justice Michael J. Burke, a Republican, against Appellate Justice Mary Kay O’Brien. The turf they’re vying to represent includes DuPage and Will counties, along with Bureau, Grundy, Iroquois, Kankakee and LaSalle counties.
None of these candidates for the seven-member court, where Democrats have a 4-3 majority, are household names. Voters will have to dig deep on their ballots to find them, adding a level of political volatility to these races.
“The worst part of it is they’re last on the ballot. So you know, people don’t get down there even to vote for these positions, which honestly could be the most important vote that they’re taking on November the 8th,” said Kathleen Sances, president of Gun Violence Prevention Action Committee, an Arlington Heights-based gun control advocacy group.
Indeed, the same culture wars that have divided the electorate could wind up before a newly constituted state Supreme Court.
On guns, for example, justices might again wade into whether the state firearms owner identification card is constitutional after punting on that question in 2020, sending the matter back to a local court. Legal challenges also have been threatened against a crackdown by Naperville this month on the sale and possession of high-capacity rifles and ammunition like those used in the Highland Park mass shooting on July 4.
And on abortion, a new court ultimately could be confronted with litigation from anti-abortion advocates that seeks to dismantle a landmark state law Pritzker signed in 2019 that requires health insurers cover abortions and that repealed a 1975 law criminalizing abortions. That case is pending in Sangamon County Circuit Court.
The 2nd District Match-up
In interviews with WBEZ, the four candidates running in these two districts tiptoed around these particular cases but nonetheless offered some glimpses into what kind of jurists they might be if voters decide to outfit them in the black robe.
In the Curran-Rochford matchup, it’s a race between an ex-law enforcement official and a well-respected member of the Lake County bench.
Curran, who has never been a judge, is a former three-term Lake County sheriff who ran successfully in 2006 as a Democrat but switched parties in 2008 after former Democratic Gov. Rod Blagojevich’s arrest. As sheriff, Curran spent a week in the Lake County jail to better understand the experience of those in the county’s Waukegan lock-up.
In 2020, Curran mounted a statewide campaign to unseat Democratic U.S. Sen. Dick Durbin but lost by 16 percentage points in the general election. In that race, Curran lost his home county by the same margin.
“I’ve not been a partisan individual,” Curran said. “I’m somebody that I think that could easily work with the other justices on the Supreme Court and bring a much needed perspective of these five counties that I’m running in so that it’s not lost in what’s best for Chicago and Cook County.”
Curran describes his opponent, Rochford, as a “partisan Democrat tied to the Chicago machine.”
On abortion, Curran told WBEZ he is “pro-life” but insisted “I’ve never called myself anti-abortion.”
But last December, Curran attended an anti-abortion rally at Federal Plaza as U.S. Supreme Court justices heard arguments in the Dobbs v. Mississippi case. Even though justices hadn’t yet overturned Roe v. Wade, Curran said in a Facebook post, “For those that believe in the protection of the child in the womb than (sic) you should thank Donald J. Trump.”
Asked who won the 2020 presidential election, Curran told WBEZ, “It’s kind of irrelevant, but Joe Biden won the election.” But in a Jan. 3, 2021, Facebook post, Curran circulated now-debunked claims about vote fraud in the presidential elections in Arizona, Nevada, Wisconsin, Pennsylvania and Georgia.
On guns, Curran said he would not discuss how he might rule on any Second Amendment cases that might wind up before the state high court. But on Instagram, during his U.S. Senate bid, Curran posted a photo of youth holding military-style rifles with the caption, “I protected your Second Amendment rights as Sheriff and I will do the same as your senator.”
In the primary, where Curran prevailed in a four-way race, the Illinois State Bar Association attached a “not recommended” label to his candidacy. Barely a quarter of lawyers surveyed by the group said he met the requirements to be a justice, with only 53% vouching for his integrity.
“They didn’t recommend me. Oh, well,” Curran said when asked about the group’s assessment of him. “I mean, I think most people are concerned about somebody that’s too close to the lawyers sitting on the highest court.”
Rochford, by contrast, was rated “highly recommended” by the group, and she sees that as a vital distinction for voters to consider when evaluating her and Curran.
“Mark Curran was found not qualified and not recommended, and he has never been a judge. And Mark has publicly stated that he had no ambition for the job, that he only ran because he believed that the Lord wanted him to. And, in contrast, this has been my life’s work, and I very much aspire to this position,” she said.
Rochford, who won a three-way Democratic primary, has been an associate judge in Lake County since 2012 and now serves in the county’s probate division, handling guardianship cases and decedent estates. Before that, she was in private practice after a stint in the Cook County state’s attorney’s office.
She also served for 22 years as a commissioner on the Illinois Court of Claims, which adjudicates legal claims against the state.
Rochford without hesitation acknowledges Biden as the legitimate winner of the 2022 presidential election, but shies away from divulging much about her stances on guns and abortion.
“I certainly have known people that have had abortions under a variety of circumstances. And I believe it’s a very personal decision. I’m not sitting in judgment of a woman’s rights of her own autonomy and body,” she said.
Rochford’s late father, James Rochford, was superintendent of the Chicago Police Department in the 1970s under then-Mayor Richard J. Daley.
Rochford avoided responding to a question exploring the authority state and local governments have in regulating high-capacity rifles and ammunition and, more broadly, about what she perceives as the major issues involving gun control.
“For a judge to be discussing or even distilling it down to this versus that as the issues is dangerous, potentially, in terms of violating the canons of ethics because it could appear that I am committing to outcomes or having an opinion that could demonstrate a bias on these issues,” she said. “So, I’m very careful about staying within the boundaries of the canons, and I just don’t think that’s my role here.”
As drawn, the 2nd Supreme Court district favors Democrats. In 2020 and 2018, respectively, Biden and Pritzker carried four out of five counties, with the main vote centers of Lake and Kane counties voting Democratic in both elections.
The 3rd District match-up
Arguably, the landscape in the Burke-O’Brien pairing is slightly more favorable to Republicans. Trump and former Republican Gov. Bruce Rauner each won five of the district’s seven counties in 2020 and 2018, respectively. But the two counties with the most voters, DuPage and Will, swung Democratic both times.
Burke, a Republican, was appointed to the Supreme Court in 2020 to fill out the term of former Chief Justice Bob Thomas. His ascension to the court followed 12 years as a justice on the Illinois Appellate Court and, prior to that, 16 years as a DuPage County judge. Before that, he was a DuPage County prosecutor.
Burke said he believes his experience in the judiciary sets him apart from O’Brien, an appellate justice herself and a former Democratic lawmaker in the House.
“All those years I spent trying cases as a prosecutor and as a trial court judge, basically she skipped over and moved right to the appellate court,” Burke said.
Even though Burke is an incumbent justice, legislative mapmakers drew a Supreme Court district in which all but his home county of DuPage represents new territory for him so voters likely know little about him.
Ahead of the primary, the Illinois State Bar Association rated Burke as “highly recommended.” O’Brien was rated by the group as “recommended.”
Like Rochford, Burke is guarded over what he says publicly about guns and abortion.
In finding the Roe v. Wade standard constitutionally flawed, a majority of justices on the U.S. Supreme Court empowered state legislatures around the country to address the question of abortion individually.
“Our state legislature has spoken on that issue. And so realistically after Dobbs, in Illinois, nothing has changed,” Burke said.
The abortion-rights group, Personal PAC, unearthed a now-deleted citation on Burke’s online campaign website in 2014 that he was a member of DuPage County St. Thomas More Society of Catholic Lawyers. The St. Thomas More Society is now suing to invalidate Illinois’ 2019 abortion-rights law and declined an interview request for this story.
The group also noted Burke was an attendee at the Illinois Right to Life banquet in Lombard last April.
Before the primary, the anti-abortion group, Illinois Right to Life Action, rated Burke and Curran as qualified for the Supreme Court.
On guns, Burke cited this month’s action by Naperville to ban assault weapons and high-capacity ammunition and the likelihood of ensuing legal challenges as a basis to steer clear of any discussion about his position on tighter gun laws. He did acknowledge the U.S. Supreme Court has “consistently said that [the Second Amendment] is not a right that is…unlimited.”
Burke also spoke about the personal impact of knowing someone at the Highland Park July 4 parade mass shooting and having an earlier mass shooting at the Oak Brook Center Mall strike close to home.
“Anybody that’s involved in any one of these public shootings, it’s horrific for people to live through. And those of us who are close to those people and living in close proximity feel that vicariously,” he said. “We are all affected by that.”
When asked the winner of the 2020 presidential election, Burke answered, “The winner is the person who was certified. That’s who the winner is.” Pressed to identify that person, Burke said, “The winner was Joe Biden.”
Burke’s Democratic opponent, O’Brien, is a veteran of two of the state’s three branches of government. She has been an appellate court justice for 18 years, having heard more than 4,500 cases, according to her campaign website. Before that, she was a member of the Illinois House from 1997 to 2003.
She characterized one of her signature legislative accomplishments as helping to extend the criminal statute of limitations for victims of sexual abuse as minors.
The 2000 law she co-sponsored scrapped the old standard that held an abuse victim had one year after turning 18 to pursue charges. Under legislation she helped carry, victims were given 10 years. In 2017, after former U.S. House Speaker Dennis Hastert was accused of abusing multiple teens decades ago, the statute of limitations involving child sex abuse victims was eliminated entirely.
O’Brien said she was struck by the story of a young woman abused as a teen who was legally powerless to go after her abuser because the deadline to press charges had lapsed.
“It was something that I only found out about because I was listening to someone who felt the system had failed them,” she said.
O’Brien said she was motivated, in part, to pursue a seat on the state’s high court after watching former Democratic Chief Justice Thomas Kilbride lose a retention battle in 2020. Kilbride’s defeat was partly the result of big donations from GOP megadonor Kenneth Griffin, who helped fund a withering advertising campaign against the justice.
“I don’t like to be bullied. I don’t like bullies. And I thought, you know what, democracy is fragile,” O’Brien said. “If everything can turn on what is said about you without a lot of verification, democracy can be in trouble.”
O’Brien believes her election carries big implications for Illinois, particularly now that the Dobbs decision has empowered future Illinois legislatures and governors with authority to scrap existing abortion protections in state law.
“To be lulled into a feeling of security because we have, right now, statutes in place that protect those rights would be pretty dangerous complacency,” she said.
The abortion-rights group, Personal PAC, has endorsed both O’Brien and Rochford.
Rare competitive seats, big implications
The upcoming elections in the 2nd and 3rd Supreme Court districts are relatively rare. The last time there were two competitive elections for seats on the court was in 2000. Nearly a quarter century later, the winners of these current races will draw 10-year terms, so their influence will likely be felt into the next decade.
Ralph Rivera, a long-time anti-abortion advocate in Springfield, said his group, Illinois Right to Life Action, believes Curran and Burke are qualified for the court based on the fact each is “known to us over the years.” He said he doesn’t know Rochford, and O’Brien’s record as a lawmaker was “not good on the life issues.”
Rivera understands the importance of the elections for his cause.
“That’s my concern … our judges having an agenda on abortion and saying, ‘Well, we’ve got to lock into the constitution a right to an abortion,” he said.
Terry Cosgrove, president and CEO of Personal PAC, said the U.S. Supreme Court’s actions on Dobbs and the possibility that Republicans in Illinois have a chance to turn the state’s high court red give unparalleled urgency to this fall’s elections — a rare point of agreement with those on the other side of the abortion argument who are backing the Republican candidates.
“Their goal is to make abortion illegal in Illinois. And if we don’t stop them from getting on the court, that’s exactly what we’re going to get in Illinois,” Cosgrove said. “There has never been a more important Illinois election in the last 50 years than…this one on Nov. 8.”
Dave McKinney covers Illinois politics and government for WBEZ. Follow him on Twitter @davemckinney.