Ohio Supreme Court justices Kennedy and DeWine undermining judiciary with redistricting partisanship

March 22, 2022 3:20 am

Photo: Courtesy of the Ohio Supreme Court

Justice is supposed to be blind. But not in Ohio. Not when a pair of Ohio Supreme Court justices dropped all pretense of impartiality and objectivity in the super high stakes redistricting cases before the court that have utterly upended Ohio politics.

Ohio Supreme Court Justice Sharon Kennedy. Official photo.

Justice Sharon Kennedy and Justice Pat DeWine effectively removed their metaphorical blindfolds to unbiased justice with stunning disregard for judicial neutrality on the district maps being litigated before the court. So, Ohioans can (and should) reasonably question what, besides the evidence, influenced their dissent on every Republican-jiggered legislative or congressional district map rightly ruled unconstitutional by the majority

Recently, Kennedy popped up at a Republican Party event in Marion County to pander for support in her campaign to replace retiring Chief Justice Maureen O’Connor.

Her fellow GOP members were consumed with the issue of redistricting and how it was being challenged in the high court. Kennedy waded right in — evidently without the foresight of propriety — calling the ongoing redistricting battle in her courtroom “the fight of our life.” Was she referring to the gathered Republicans in a case that couldn’t be more politically charged? 

Certainly, the justice left no doubt with the partisan crowd about her views on the lawsuits under deliberation at the state supreme court over the (gerrymandered) districts drawn by Republican leaders.

Kennedy griped about the undue sway of outside Democratic groups on the redistricting process in Ohio. Never mind that the plaintiffs in the redistricting cases, presenting arguments to the Ohio Supreme Court, are affiliated with the organizations attacked by a justice hearing the cases. Let. That. Sink. In. Kennedy claimed left-leaning activists were mobilizing “to put judges on the court that would do what they’re doing with redistricting.” Sounds like a conspiracy to uphold the Ohio Constitution. 

The justice’s public statements unmasked a disturbing partisan bias that, according to the Ohio Code of Judicial Conduct, “might reasonably be expected to affect the outcome or impair the fairness” of a matter pending in court.

The prejudicial remarks from a sitting judge were “really troublesome,” agreed Professor Jonathan Entin of Case Western Reserve University School of Law. Kennedy’s “blatantly partisan” barbs were “so over the top focused on a particular case” that they, at the very least, “raise questions of impropriety” for litigants appearing before the high court on the cases she referenced.

As arguably unethical as Kennedy’s comments were on the redistricting cases she is hearing, “nothing will come of this,” Entin sighed. The justice is “clearly not going to recuse even if someone asks her to.” Still, Kennedy’s compromising judicial conduct on the already politically fraught redistricting cases, may complicate her ambition to lead the court as a (now debatable fair and dispassionate) candidate for chief justice. Her colleague in the disqualifying partiality category on the bench, Justice DeWine, is equally, if not more, ethically challenged.

Ohio Supreme Court Justice Patrick DeWine. Photo courtesy the Ohio Supreme Court.

The Republican, who is up for reelection, should have recused himself from the onset of the redistricting cases, said Entin. “It’s not a close call.”

DeWine, whose father is the governor, a member of the Redistricting Commission and a named party to the case before his son, “should not be sitting in any of these cases, both the congressional maps and the legislative maps,” the legal scholar said. The justice has maintained that ethical rules for the judiciary — about him stepping down from adjudicating on maps that were approved, in part, by his dad — don’t apply.  DeWine is wrong. The Ohio Code of Judicial Conduct is unambiguous about why, Entin argued, a position widely shared in the legal community. 

DeWine’s conflict of interest in deciding the outcome of the redistricting lawsuits, whose defendants include Gov. Mike DeWine, is painfully evident. The rules stipulate that “a judge shall disqualify himself or herself in any proceeding in which the judge knows that a close relative is a party to the case,” explained the law professor. The justice tried to slide around the last part by asserting that his father was just one of the parties to the case.

But the language governing judicial conduct in Ohio is crystal clear, stressed Entin. Count on the lawyer: “The rules say, ‘a party’ not ‘the only party on one side.”

The refusal of an Ohio Supreme Court justice to acknowledge the obvious and disqualify himself from rendering judgement on his father is a judicial travesty. But so is the refusal of a justice to refrain from injecting jarring partisanship into judicial deliberations of grave import to millions of Ohioans. 

Maybe, as the professor mused, we can’t eliminate politics completely from our courts. But “to the extent that everything, or a substantial amount of what the courts do is perceived as simply reflecting the personal or political views of the judges and justices” is the extent to which our legal system, “the whole idea where you win some, you lose some, you go on to fight another battle,” is dangerously undermined. 

In their last dissent on legislative district maps, that again unduly favored one party over another in violation of the voter-approved amendment to the Ohio Constitution on redistricting, Kennedy and DeWine accused the court majority of supplanting the will of voters with their own policy preferences (by adhering to the letter and intent of the constitution) and threatening “the very legitimacy of the court.” 

That’s rich coming from a pair of justices without blindfolds.



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Marilou Johanek
Marilou Johanek

Marilou Johanek is a veteran Ohio print and broadcast journalist who has covered state and national politics as a longtime newspaper editorial writer and columnist.