Ohio GOP Justice Sides with Democrats to Swing Some Outcomes

Republican Ohio Supreme Court Justice Patrick F. Fischer’s vote may not widely be viewed as being up for grabs like former Chief Justice Maureen O’Connor’s was before she stepped down at the end of 2022.

But a series of decisions following O’Connor’s departure has made something apparent: that he’s willing to side with the seven-member court’s three Democrats on certain issues, like self-defense, last year’s abortion ballot measure, and the rights of those injured on the job.

Just don’t call him a swing vote.

“I am my own boss,” he said in an interview. “No one tells Pat Fischer what to do.”

To be clear, Fischer isn’t considered the next O’Connor, a Republican who most notably sided with Democrats in striking down GOP-drawn electoral maps. In fact, Fischer showed his partisan bona fides in the run-up to his 2022 re-election, such as when he compared Roe v. Wade to a pair of US Supreme Court rulings that upheld slavery and segregation.

He was also quick to point to a study commissioned by fellow Justice Michael P. Donnelly (D), which noted that nearly two-thirds of the Ohio high court’s decisions since 2019 were unanimous.

But he has broken with his party on several occasions. Last September, he sided with Democrats in ruling that the Ohio Ballot Board must change some of the language voters were set to see on a measure passed in November to enshrine reproductive rights in the state’s constitution.

The following month, he again ruled with the liberals and said an injured waste management employee doesn’t have to pay for a medical review sought by the Bureau of Workers’ Compensation to challenge a claim that was ultimately denied. Then in November, he again sided with Democrats and decided that a former municipal court judge who was suspended after throwing a courtroom spectator in jail for refusing to take a drug test couldn’t oust his successor because his seat was properly declared vacant and filled by the governor.

Earlier this month, Fischer was the deciding vote to reverse a felonious assault conviction against a man who said hefired “warning shots” in self-defense. Fischer agreed with the outcome, but didn’t sign on to the main opinion, which said the defendant could argue self-defense even if he didn’t intend to hurt or kill another person.

Fischer, 66 , will be out of office after 2028 due to the state’s restriction on having judges and justices run after turning 70.

“I used to say what I thought and worried about it,” Fischer said of not running again. “Now I say what I think and I don’t worry about it.”

Textualist Philosophy

It appears that Fischer’s approach can sometimes be attractive to his Democratic colleagues when they’re looking for another vote.

Justice Donnelly described Fischer, who previously served on the First District Court of Appeals in Cincinnati and is a former president of the Ohio State Bar Association, as “an honorable man.”

“I think he will keep an open mind, as I wish all of my colleagues would, to be persuaded that a position that they’ve taken might not be the correct one,” he said.

Steven A. Friedman, a partner at Squire Patton Boggs who defended the respondents in the case involving a municipal court judge, said he thought Fischer’s judicial philosophy came from the justice’s two decades as a commercial litigator at Keating Muething & Klekamp PLL.

“That’s a little different than somebody who was always a politician and then a judge,” Friedman said.

Fischer, who describes himself as a “textualist,” acknowledges chatter about his being in the middle of the court. But he said he hasn’t changed how he arrives at his decisions since being elected in 2016.

Still, Fischer said he believes that enforcing the law as written “makes me a true conservative.”

This mode of interpretation puts him between an originalist like Justice R. Patrick DeWine (R), who interprets law based on how it was understood at the time it was enacted, and the court’s more progressive wing, said University of Toledo law professor Lee Strang.

“As a judge who’s committed to the rule of law, he focuses on text and precedent, and that other what he describes as policy decisions, those are done by other branches,” Strang said. “And that’s not necessarily inconsistent with people either side of him, but I do hear it to be a different position than the folks on both sides of him.”

Fischer agreed with Strang and Friedman’s statements. He noted that he racked up one million frequent flyer miles before he became a judge, which helped shape his legal philosophy not only as a textualist but also as a pragmatist.

“I apply the words of the statute to the facts of the case and that’s it,” he said. “And sometimes it’s perceived as conservative, sometimes it’s perceived as liberal, but it’s really neither. It’s textualism.”