State bar association says at least 84% of members supports retaining Indiana Supreme Court justices

As a social media campaign encourages Hoosiers to vote three justices off the state’s high court, the Indiana State Bar Association released a survey that shows at least 84% of its members supports retaining them.

The state bar association’s leadership also released a statement Tuesday encouraging Hoosiers to analyze Indiana Supreme Court Chief Justice Loretta Rush and Justices Mark Massa and Derek Molter based on their entire careers as judges and not on isolated rulings.

“Allowing retention elections to become a referendum on one or two high-profile cases threatens to distort the judicial process and compromise the courts’ ability to function independently,” the ISBA said in its written statement.  “Our system of judicial selection for Indiana’s appellate courts, though not without imperfections, is designed to minimize the influence of partisan politics and special interests.”

The statement appears to be in response to a social media campaign that is asking voters to toss the three justices off the court because of their decision to uphold the near-total abortion ban approved by the Legislature in 2023.

The five-member court, all Republican appointees, ruled 4-1 to uphold the law. Only three of the justices are on the Nov. 5 ballot, and voters are simply asked whether they want to retain them.

All three justices up for retention voted to uphold the near-total abortion ban and signed on to the majority opinion, which says: “Article 1, Section 1 (of the Indiana Constitution) protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk, but the General Assembly otherwise retains broad legislative discretion for determining whether and the extent to which to prohibit abortions.”

The law approved by the Legislature bans abortion in Indiana, with a few, narrow exceptions. Abortions are only allowed in cases involving fatal fetal abnormalities, to preserve the life and physical health of the mother, and in cases of rape or incest up to 10 weeks of pregnancy.

The state bar association, which has about 12,000 members, did not immediately respond to Indiana Lawyer’s questions about how many members participated in the survey.

But of those who did, 88% supported retention of Rush, while Massa and Molter were supported by 84% of the membership.

The survey was conducted electronically between Sept. 2 and Sept. 30.

The bar association’s statement notes that finalists for a post on the Indiana Supreme Court are selected by a nonpartisan nominating commission, where judges are nominated for their expertise and impartiality, rather than elected through partisan campaigns.

Ultimately, the governor appoints a justice from three finalists selected by the nominating commission.

“By removing political pressures from the selection process, this system helps protect judicial independence, ensuring that judges make decisions based on the law, not on popular opinion or political influence,” the state bar said in its statement. “It’s a safeguard to maintain a fair and unbiased judiciary, where legal rulings are grounded in the law and constitution rather than political or public pressures.”

The bar association’s survey also found overwhelming support for two Indiana Court of Appeals judges up for retention this year. Judge Peter Foley was supported by 87% of participating members, while Judge Rudolph Pyle was favored by 85%.

The association’s members include lawyers, judges, paralegals, law librarians, law students and court administrators.