The November election marked a few firsts for the Illinois Supreme Court. But the changes are leaving some questioning how the new, more progressive court will shape Illinois law for businesses and taxpayers, alike.
The court now has five women, a first in Illinois Supreme Court history, as well as three black justices, in justices P. Scott Neville, Lisa Holder White and Joy V. Cunningham.
And for the first time, Democrats hold the largest majority to date, 5-2, following the elections of Lake County Judge Elizabeth Rochford and Illinois District Appellate Justice Mary K. O’Brien. Both women campaigned openly as political progressives, trumpeting their endorsements from left-wing politicians and activist groups, including labor unions and Planned Parenthood, among many others.
From left: Illinois Supreme Court justices Mary K. O'Brien and Elizabeth Rochford were recently installed on the state high court.
| twitter.com/marykayobrienil; facebook.com/JudgeRochford/
Both women have judicial experience. In her 35-year career, Rochford has served in private practice, as a former Assistant State’s Attorney, and as a Commissioner of the Illinois Court of Claims, before serving on Lake County's courts.
O'Brien is a former Democratic state representative and has been a justice serving on Illinois' Third District Appellate Court.
But while many are celebrating the historic firsts on the court, organizations representing employers and other businesses in Illinois say they are concerned that what is basically a Democratic supermajority on the court could use recently approved state constitutional amendment to make the state less friendly for employers and middle class taxpayers.
Precisely how the new justices will shape the court remains to be seen.
"How one determines whether they vote to take a case or not to take a case may be emblematic of Elizabeth Rochford being a trial court judge, Mary K. O’Brien being an Appellate Court Justice,” said attorney Scott Szala, former Interim Director of Trial Advocacy and an adjunct professor with the University of Illinois College of Law. "So how they view it, and I don’t think anybody can say anything more other than it will be different people looking at it from different backgrounds.
"Obviously with both of those (jurists) being Democrats they bring to their normal background the way they view the world just like Republicans view the world differently.”
Szala, who also serves on three Illinois Supreme Court committees, explained the Illinois Supreme Court can only take a limited number of petitions. The number of petitions can range between 3,000 to 5,000 cases a year with the court only taking 80 cases to decide. To predict how the court with two new members is going to take a case is uncertain, Szala said.
“Everyone's backgrounds will help determine how they decide to take cases and will filter into it. They certainly will have to make decisions based on the law, but we all are a product of our own experiences and I’m sure that’s something that for all the new justices will be equally applicable.”
Democrat’s recent political ads largely focused on abortion rights. Szala does not expect much activity from the court on this issue, as well as other issues that were at the forefront in election campaigns.
"A lot of these issues are issues that receive political coverage but in reality, because of the breakdown of political parties in the state now, really are not going to have any major effect,” he said.
In 2019 the state passed and, Gov. Pritzker signed into law, the Reproductive Health Act, which sets forth the fundamental rights of individuals to make autonomous decision’s about one’s own reproductive health, including fundamental right to use or refuse reproductive care.
"Illinois statutorily has already enacted this and that’s why I’m saying that some of the arguments were overextended in the judicial races as well as in general,” Szala said.
A challenge to the 2020 state redistricting maps is a case James Nowlan, a retired professor and former Illinois legislator and state agency director, would like to see the new court accept. The Second and Third Judicial Districts were redrawn by the Democrat supermajority in Springfield last year. Nowlan said the new maps are an abuse of good government and the Illinois constitution.
“The districts are absurdly noncompact,” Nowlan said, adding that the Illinois constitution says districts shall be compact and substantially equal in population.
Nowlan said he has encouraged Republicans to challenge the maps, but has been told the Democrat-led Illinois Supreme Court would not deem them unconstitutional.
Nowlan doesn’t expect much progress from state Republicans.
“Republicans are irrelevant in Illinois politics today,” he said. “Republicans should expect they’re going to be treated like dirt by Democrats and that’s unhealthy because we’re talking about courts and the way we select judges.”
Illinois Chamber of Commerce President Todd Maisch said he felt the election was a bad omen for the state’s business climate.
"I think the 5-2 majority, just like the 4-3 majority in the past, has not been very business friendly. Everything from taxation issues, to the fact that medical malpractice caps were thrown out, to redistricting and restoring some kind of part of balance to the state, I think we are concerned,” he said. "You always want to give a new Supreme Court justice the benefit of the doubt, but we’re prepared for some bad decisions out of the court.”
Maisch suggest business owners should be prepared to defend things within the legislature.
“If they're going to rule on the constitutionality of a new law then you need to start building a record right off the bat and that includes legislative intent, it includes as broad coalition as possible so it demonstrates initiative," Maisch said.
With the passing of the Workers' Right Amendment, Maisch is concerned what it will mean for taxpayers and possibly some businesses.
"There’s a lot of language in there that’s not defined at all, so what usually happens when you don’t have well defined constitutional amendment or law then the courts step in and they define it for you,” he said.
In particular, Maisch is concerned about limitations on tax increases, citing the Tax Extension Limitation Act which is designed to limit increases in property tax extension for non-home rule taxing districts. The act was never popular with teachers’ unions, Maisch said, since it limits the amount of revenue local school districts have to increase wages and hire teachers.
Maisch said it would only require one school district and one enterprising attorney to go after the law and claim it’s violating the new constitutional amendment because it’s limiting the economic well being of teachers.
“(The case would) get to the Supreme Court that is now 5-2 against tax payers, I would say, and nobody's seen this type of amendment before. It’s not well defined at all and I would say by design,” Maisch said. "All the sudden something that limits increases in property taxes could be thrown out the window.
“I think five years or earlier somebody's going to do exactly what I’ve described."