A rare Georgia Supreme Court race could hinge on abortion rights

Over nearly two centuries, almost all the sitting Georgia Supreme Court justices who have sought another term have won their elections. Former U.S. Rep. John Barrow might have the best chance in generations to upend that tradition.

The ex-Democratic lawmaker is treating the nonpartisan race much like a political campaign, emphasizing his support for abortion rights to challenge Justice Andrew Pinson, who was Gov. Brian Kemp’s surprise 2022 pick to fill a vacant seat.

If the track record wasn’t daunting enough, Pinson enjoys support from a bipartisan cast of judicial and legislative leaders, along with help from Kemp’s political network as he seeks a full six-year term in the May 21 election .

Barrow, however, is convinced Georgians are ready for a justice who believes in an ever-evolving “living Constitution” and is openly critical of anti-abortion limits in Georgia.

“I’m running because I believe that women have the same rights today under our state constitution that they used to have under Roe v. Wade,” he said this week at a North Fulton County Democrats forum.

Speaking about the pending legal challenge over Georgia’s abortion restrictions, which generally ban the procedure for most women as early as six weeks, Barrow doesn’t mince words.

“It’s the most important decision the Supreme Court of Georgia is going to make in the next 20 years,” he told the standing-room-only crowd. “Politicians shouldn’t be making your personal health care decisions.”

The campaign trail is familiar territory for Barrow, who represented a chunk of south and east Georgia over five terms in Congress. He narrowly lost a 2018 bid for secretary of state before embarking on a quest for the judiciary.

Pinson has run a more traditional campaign for a statewide judicial race — avoiding speaking directly about issues that could come before the court while talking broadly about his philosophy. The 37-year-old was first picked for the bench in 2021 after serving as the state solicitor general.

“I’m a judge, not a politician,” he told The Atlanta Journal-Constitution. “Folks understand that what makes a good judge doesn’t really have to do with partisanship or politics.”

Credit: Natrice Miller/AJC

Though Pinson lacks the courtroom experience of some of his peers, he has other bona fides, including a stint clerking for U.S. Supreme Court Justice Clarence Thomas.

He tells audiences he approaches cases with “an open mind and considering them fairly and impartially,” but he won’t discuss his specific views on abortion or other matters that might come before the court.

“I’ve shown from my work so far that I’ve served with excellence, too, and that I’ve done this job the right way,” he told the “Politically Georgia” podcast.

“Whatever my age is,” Pinson said, “my experience to this point is extensive and directed toward doing this job.”

For Barrow, 68, the race isn’t just about backlash to abortion limits. It’s also a challenge to a system of judicial appointments that he sees as fundamentally “dysfunctional.”

That almost no incumbent justice has lost an election since Georgia’s Supreme Court was founded in 1845 is no surprise to Eric Larson, an Atlanta litigator who, like many attorneys, keeps tabs on judicial elections.

The rare exception: Records show that Richard Russell Sr. defeated incumbent Chief Justice William Fish in 1922.

Most justices are appointed to the bench, run as incumbents and step down before their term ends. The governor then chooses a replacement who runs as an incumbent and repeats the cycle.

Open Supreme Court races are rare. The last was in 2018, when then-Georgia Court of Appeals Judge John Ellington scared off opponents to capture a vacant seat. He’s now the only one of the nine justices who wasn’t appointed.

Competitive challenges to sitting incumbents are also rare. This cycle, Pinson is the only one of four justices up for election to face a challenger. And only a few sitting justices have faced formidable opponents in the past 30 years.

One was then-Justice David Nahmias, who was dragged into a surprise runoff by a little-known attorney who didn’t mount a campaign. His easy victory a few weeks later led analysts to speculate his unusual last name factored into his earlier struggles.

The lack of formidable competition is unusual in an era of increasingly politicized judicial races for posts that are officially nonpartisan. In Wisconsin alone, more than $30 million was spent in a 2023 race for a swing seat on the bench.

“We are kind of behind the curve, and you can argue that’s a good thing,” said Richard Vining, a University of Georgia political scientist who studies the judicial selection process.

“Georgia usually hasn’t followed this nationwide trend,” Vining said, “but it seems like we’re in a moment now where that could change.”

What makes Barrow stand out from the handful of other Supreme Court hopefuls who waged losing campaigns is his vast name recognition and long tenure in politics.

First elected to the U.S. House in 2004, Barrow moved from Athens to Savannah to Augusta over a decade in Congress each time his district was redrawn. For a time, he was the last white Democrat in the Deep South. He liked to call himself the “most gerrymandered member of Congress in the history of the republic.”

His experience with redistricting also meant he represented a significant portion of Georgia’s electorate even before his 2018 run for secretary of state, when he spent $3.1 million promoting his campaign. He narrowly lost that contest in a runoff to Republican Brad Raffensperger.

Before challenging Pinson, Barrow also had designs on filling the seat of retiring Justice Keith Blackwell, but that 2020 election was nixed in a 6-2 decision by the state’s top court.

His partisan background also makes Barrow a bigger threat to conservatives. At a Rotary Club in North Georgia last week, GOP commentator Martha Zoller left with one takeaway after hearing Barrow speak: “I thought he was running for Congress.”

Mack Parnell of the Georgia Faith and Freedom Coalition plans to distribute thousands of flyers to conservative voters next week highlighting Barrow’s abortion rights stance. He’s called Barrow an “activist trying to become a judge” to advance a political agenda.

Pinson, by contrast, has steered clear of discussing overtly political issues and skipped a recent Atlanta Press Club debate, saying it would risk violating judicial codes. Barrow, he said, is undermining the judiciary’s reputation with his campaign style.

“We are seeing across the country a public who has lost confidence in our judiciary,” Pinson told the “Politically Georgia” podcast. “It’s dangerous to our democracy to attack the credibility of our courts in this way by feeding into this cynical view.”

Pinson told the AJC that his written opinions show “independence from partisanship” and demonstrate that he’s not playing politics.

“One of people’s biggest concerns these days is this idea of activist judges or people with political motives becoming judges,” Pinson said. “That they’re not ruling based on the law, they’re seeking outcomes that they prefer or ruling based on political or policy preferences.”

Barrow makes no apologies for framing the race around the preservation of abortion rights. Though his vote wouldn’t change the makeup of a decisively conservative bench, he said it could herald a greater change of the court’s direction.

During the Atlanta Press Club debate, Barrow repeated his view that the state’s 2019 anti-abortion law violates the Georgia Constitution. As for his opponent, who didn’t attend the debate, Barrow was unsparing.

“The only thing worse than his record,” he said of Pinson, “is that he’s too chicken to come here and stick up for himself.”

Staff writer Tamar Hallerman contributed to this article.

Credit: Jason Getz / Jason.Getz@ajc.com

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