Last Democrat on Ohio Supreme Court Adjusts to Going It Alone

Ten years of the Trump era has solidified the downfall of Ohio Democrats. After another GOP romp, there’s just one statewide elected Democrat left: Justice Jennifer Brunner, who saw the other two members of the court from her party lose in November.

But Brunner’s newfound isolation—and chances of being on the winning side in split decisions having dwindled—doesn’t alter her resolve to rule in ways she deems proper, she said. And she won’t tamp down her occasionally fiery dissents or her questioning during oral arguments.

“My philosophy doesn’t change,” she said in a Jan. 23 interview in her Columbus chambers, which features a photo of her granddaughter dressed up as former US Supreme Court Justice Ruth Bader Ginsburg and newspaper political cartoons from her time as Ohio secretary of state.

Brunner’s status as the seven-member court’s sole left-leaning voice comes at a time when the justices are expected to address cases involving municipalities’ ability to enact strict gun ordinances and the reach of the state’s new constitutional amendment protecting abortion.

The 67-year-old said she doesn’t feel isolated on the court and has an open mind about her colleagues, especially the two newest justices. Still, she worries about the court’s direction.

Without an ideological balance, “I think there’s a tendency toward groupthink,” she said.

Party Labels

Brunner was elected to the court in 2020 by more than ten points. She was the third Democrat that voters installed there in a three-year period even as the state trended red.

Part of the reason she may have won was because, at the time, ballots did not list party affiliations next to the names of state Supreme Court candidates. Republicans certainly thought so, and changed state law to require “D” and “R” appear next to the names of supreme and appeals court candidates on general election ballots beginning in 2022.

No Democrat has won an Ohio Supreme Court race since then—including Brunner, who unsuccessfully challenged colleague Sharon L. Kennedy (R) that year to be the next chief justice while both still sat on the court.

Brunner in 2023 sued Secretary of State Frank LaRose (R) and state court officials in federal court to block the law or allow her to speak more freely as a Democrat on the campaign trail ahead of her reelection race next year, something she claimed she’s constrained from doing due to judicial ethics. Republicans have in the past criticized her for what they saw as improper ties to litigants in and statements about cases over redistricting the state’s congressional and legislative districts.

While the rules box her in “to what people think a Democrat typically thinks, when maybe I don’t,” Brunner doesn’t want to speak in a more partisan fashion, she said.

“Anyone who walks in and thinks that the referee of the game already has the result figured out is not going to have any trust in any of the calls made by that referee,” Brunner said.

She noted the judges were split evenly between Democrats and Republicans during some of her time on a Columbus-area state appeals court, following her sole term as secretary of state, “and I felt like we did our best work when it was pretty close to even.” She feels the same about the Supreme Court.

But to her chagrin, her fellow justices are often content to defer to the GOP-controlled legislature, sometimes at the expense of an analysis that shows how a law harms people, she said.

She cited the case of Ohio v. Gwynne, in which a first-time offender who stole from the elderly while working or posing as a nurse’s aide received a 65-year prison sentence. The court in 2022 ruled 4-3 to order a resentencing but the following year—after the retirement of then-Chief Justice Maureen O’Connor, a Republican widely considered a swing vote—the court reconsidered and upheld the sentence in another 4-3 decision the following year.

“We talk a lot about staying in our lane in the judiciary, which I feel very strong about,” Brunner said. “And others who say the same thing, sometimes it doesn’t seem like there’s consistency of action with intent.”

The Loneliest Number?

Former Democratic justices who were once in the same position as Brunner said she need not feel sidelined.

Ex-Justice William M. O’Neill, who was the lone Democrat on the court from 2013 to 2018, said a single voice is still powerful, regardless of from which political party it originates.

“There’s no question that one vote can make a difference on the Supreme Court of Ohio,” he said.

Former Justice Yvette McGee Brown, a Jones Day partner who was the court’s lone Democrat from 2011 to 2012, also said she occasionally cast the deciding vote.

And Benjamin M. Flowers, who served as Ohio’s solicitor general under Attorney General Dave Yost (R) from 2019 to 2023, said he would “never assume that someone’s vote is not needed.

“In many cases, it’s just very hard to predict,” said Flowers, now of Ashbrook Byrne Kresge Flowers LLC.

But Brunner said her concerns about the court’s direction persist. To her, a court is “partisan” when it is “using the law to get to a desired result.”

When asked whether the Ohio Supreme Court has become partisan, she said, “I think that it remains to be seen and I hope that that’s not where people say we are at the end of the year.”