Control of the presidency and Congress weren’t the only important matters on the ballot this week. In Arizona, voters chose to keep Clint Bolick, a prominent libertarian legal mind, on the state’s Supreme Court. Arizona judges face periodic retention elections which are usually routine matters, rarely resulting in anybody losing their seat. This year, though, Bolick and another justice were targeted after a controversial abortion decision; despite the campaign against them, both cruised to victory.
Co-Founder of the Institute for Justice
Bolick is probably best known beyond Arizona as the co-founder, with the late Chip Mellor, of the Institute for Justice (I.J.) in 1991. The organization’s timeline notes that it started small, “with Chip Mellor, Clint Bolick, Scott Bullock, and two other staff members.”
“When Chip and Clint created the Institute for Justice in 1991, their most ambitious goal was to resurrect the Fourteenth Amendment’s Privileges or Immunities Clause as the primary source of protection for individual rights against state and local governments—including particularly the right of occupational freedom,” Clark Neily, a former IJ staffer, wrote for the Cato Institute after Mellor passed away last month.
Earlier in Bolick’s career, I briefly corresponded with him (not that I think Bolick remembers) after reading his 1990 book, Unfinished Business: A Civil Rights Strategy for America’s Third Century. That book helped confirm my decision to go to law school and the path I wanted to pursue as an attorney.
Through no fault of Bolick’s, I dropped out of law school in favor of other pursuits, ultimately culminating in what I’m doing now. Bolick himself moved on from I.J. to serve as president and general counsel of the Alliance for School Choice, where he litigated on behalf of education freedom.
In 2007, Bolick joined Arizona’s Goldwater Institute, where he headed up its litigation efforts. “Bolick has successfully won landmark precedents defending school choice, freedom of enterprise, private property rights and challenging corporate subsidies and racial classifications,” according to a 2014 profile by Townhall’s Rachel Alexander.
In 2016, Bolick told Reason‘s Damon Root that his favorite case was a lawsuit that inspired first Texas, and then Congress, to pass “legislation making it illegal for public entities to discriminate in adoption placement” with a particular emphasis on barring racial considerations.
An Immediate Target on the Arizona Supreme Court
That year, Republican Doug Ducey, Arizona’s then-governor, appointed Bolick to the state Supreme Court, He became the first registered Independent on that body, and almost certainly the first to sport a scorpion tattoo on his hand, celebrating a victory in a tattoo studio’s free speech case. The court’s caseload spans everything from mundane legal matters to First Amendment issues and eminent domain. Bolick compiles his decisions, whether majorities, concurrences, or dissents, online for easy perusal.
“I am especially passionate about our state constitution and have authored opinions vindicating its speech and privacy guarantees, among others,” he wrote in the Arizona Republic last summer.
Arizona requires judges to go through periodic retention elections, two years after they’re appointed, and then every six years thereafter. As an associate justice with a history of libertarian legal positions, Bolick was immediately targeted by hostile groups. The National Education Association wanted him removed from the court because of his support for school choice. He survived his first retention election in 2018 with 71 percent of the vote.
A Controversial Abortion Decision
This year, Bolick and Justice Kathryn King, who is up for her first retention election, were targeted for their rulings in a hotly contested abortion case. As the U.S. Supreme Court returned the issue of abortion to the states in the 2022 Dobbs v. Jackson Women’s Health Organization decision, state lawmakers scrambled to pass laws either protecting or restricting access to the procedure.
Shortly before Dobbs, Arizona adopted legislation allowing abortions up to 15 weeks, and afterwards only in the case of medical emergency. But the state already had a law on the books, dating back to 1864 in territorial days, that was much more restrictive. It was effectively suspended during the Roe era, when the U.S. Supreme Court ruling shielded abortion from restrictions, but revived by Dobbs. The state Supreme Court considered if the 2022 law was written so that it superseded the 1864 law. The majority opinion, which Bolick and King joined, ruled that the more recent law did not repeal the earlier one.
It wasn’t a policy decision, but a question of whether lawmakers had competently drafted their legislation. They hadn’t.
“In a poignant historical moment, my legislator wife immediately joined the effort to overturn our ruling,” Bolick noted in that Arizona Republic piece, referring to his wife Shawnna, a state senator. “That caused no marital disharmony because she is a policymaker and I am not.”
But a lot of people are more interested in outcomes than they are in how those outcomes are achieved—and never mind that the legislature fixed its mistake by repealing the territorial-era law. Abortions were further protected in this week’s election when Arizona voters passed Proposition 139, amending the state Constitution to specify that abortion is a fundamental right and permitted up to fetal viability. The Arizona Secretary of State’s vote count currently has Proposition 139 passing by 61 percent to 39 percent.
Victory With the Voters
The same count has Arizona Supreme Court Justice Clint Bolick retaining his seat by 58 percent to 42 percent (King won by a similar margin).
A ballot measure that would have done away with retention elections, Prop. 137, was overwhelmingly defeated, 77 percent to 23 percent.
“Dear friends, I am honored to have the opportunity to serve on the USA’s best state supreme court for another three years,” Bolick responded to the results on Facebook. “I am beyond grateful for your votes, your support, and your prayers. This was so important to win to preserve an independent judiciary in AZ, and it appears we did so decisively. I couldn’t have better friends and colleagues!!”
Arizona mandatory retirement age for judges is 70, so Bolick can serve until 2027 and won’t face any more retention elections. That means Arizona’s libertarian Supreme Court justice will be with us for a few years more. The state’s residents can only hope that he’ll be replaced by somebody with a comparable track record of fighting for liberty.
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