A former Democratic Georgia congressman hopes abortion can power his state Supreme Court bid

HOSCHTON, Ga. — May’s election to the Georgia Supreme Court is playing out the way the battle for the state’s highest court has played out for decades: incumbent justices are unchallenged.

But there is an exception, and it’s driven by the issue that has roiled politics across the country for the past two years: abortion.

Judge Andrew Pinson is the only one of the four incumbents seeking an election to face a challenge, and it is a formidable one. Former U.S. Rep. John Barrow, a Democrat, hopes to leverage voters’ reaction to abortion restrictions to dethrone Pinson in what could be a model for future court battles in Georgia in a state that has become a partisan battleground.

The May 21 general election for a six-year term is nonpartisan, and a Barrow victory would not change the court’s conservative views. Eight of the nine justices, including Pinson, were appointed by Republican governors. The other won his seat unopposed after being appointed to a state appeals court by a Democratic governor.

Barrow’s offer is seen as a long shot. Pinson, appointed two years ago by Republican Gov. Brian Kemp, appears to be raising more campaign money as the state’s legal establishment closes ranks around him.

But Barrow hopes a voter backlash against Georgia’s near-total abortion ban will be the path to unrest.

In conversations with mostly Democratic groups, Barrow says that when Pinson was attorney general of Georgia, he was the attorney most responsible for the state supporting the Mississippi case that led to the U.S. Supreme Court upholding a constitutional right to abortion in 2022 destroyed.

That decision paved the way for a 2019 Georgia law that bans most abortions after the fetus’s heart activity can be detected, usually around the sixth week of pregnancy. That’s before many women know they are pregnant.

At an April 15 Democratic meeting at a retirement community northeast of Atlanta, Barrow attacked Pinson’s former membership in the Federalist Society and his term as a law clerk for Supreme Court Justice Clarence Thomas, drawing boos from the 50 people in attendance.

Barrow said he believes Georgians have a constitutional state right to abortion and that voters would improve their chances of restoring broader access to abortion by doing something they have never done before: defeating an incumbent state justice.

“I happen to believe that the Georgia Constitution does indeed provide a right to privacy, and that includes everything we associate with what the law was under Roe vs. Wade. And then it’s probably broader,” Barrow said. “That would mean that the current statute, the current ban that we are living with now, violates that provision of the Constitution.”

Opponents of the six-week ban are challenging it in court, arguing that Georgia’s unusually well-developed privacy protection law should invalidate the ban. That case will almost certainly go back to the Georgia Supreme Court

Pinson said it would be inappropriate to discuss his views on abortion or other topics that could come before the court.

“When judges start talking about issues in cases that are coming before the court, or that could come before the court, and think, ‘Personally, I think this; personally, I think it just erodes people’s confidence in our judiciary, Pinson said in an interview.

Supreme Court races have become more expensive in recent years as courts have weighed issues like political gerrymandering. The U.S. Supreme Court’s decision striking down the right to abortion has put these races under even greater scrutiny in the past two years as the divisive issue has returned to states.

Public polls show that the majority of people in the US support the right to abortion, and voters have affirmed the right to abortion in seven states in the past two years since Roe v. Wade was overturned, including in Republican states such as Kentucky, Montana and Ohio.

Douglas Keith, who follows state supreme courts for the Brennan Center for Justice at New York University, said money has flowed into races from groups on the left and right, creating contests like the one last year in Wisconsin. There, a liberal judge backed by Democrats flipped the court after defeating a former judge backed by Republicans and anti-abortion groups in the most expensive Supreme Court race ever.

“We’re seeing money like we’ve never seen before in these races. Candidates and groups are adopting messages they have never used before in judicial elections, and there is generally more attention on these races,” Keith said.

Pinson, 37, graduated first in his law degree from the University of Georgia and served four years as attorney general, helping Georgia win a long-running dispute over water rights. Kemp appointed Pinson to the state Court of Appeals in 2021 and elevated him to the Georgia Supreme Court a year later. Many lawyers, including some Democrats, have endorsed him for election.

Meaningful electoral challenges to sitting judges in Georgia are rare. Anthony Michael Kreis, a law professor at Georgia State University, said this reflects the “small club dynamic” prevailing within Georgia’s legal establishment.

“I just think we’re dealing with kind of an old-fashioned mentality, where people don’t really want to get involved in the kind of partisan warfare over judicial seats that we’ve seen in some other states,” Kreis said.

Barrow, 69, served five terms in Congress and was for a time the only white Democratic representative from the Deep South. He ultimately lost in 2014 after Republicans captured his district for a second time. In 2018, he narrowly lost a race for Georgia secretary of state to Republican Brad Raffensperger.

Although judges are elected, the pattern is for a judge to resign and the governor to appoint a successor. A newly appointed judge then gets two years on the bench before facing voters.

Barrow was denied the opportunity to run for office in 2020 after a judge announced he would resign after the election date before his term expired. A challenge arguing that the election should be held anyway was rejected. Barrow calls the appointment system “dysfunctional” and promises that if elected, he will let voters choose his replacement.

“If the voters give me the office, I will give it back to the voters,” he said.

While his victory would not change the court’s overall political makeup, Barrow said it would send a message to state justices about abortion rights. He referred to the Alabama Supreme Court’s decision earlier this year that declared frozen embryos created through in vitro fertilization could legally be considered children, and to an Arizona Supreme Court ruling earlier this month that abortion ban from 1864, before Arizona was a state, was revived.

“We are now being educated across the country about how important the office of Supreme Court justice is,” Barrow said.