Diverse Justices Set to Shift Illinois Supreme Court’s Direction

An Illinois Supreme Court with more women, Democratic, and Black jurists could invigorate a traditionally cautious court into one unafraid to alter state laws, including reversing court precedence, lawyers and academics said.

The new makeup of the court is just a year old, and the panel has already upheld gun restrictions and agreed with judges who ruled to detain suspects under the nation’s first no-cash bail law.

Last year, Lisa Holder White (R), Joy Cunningham (D), Mary K. O’Brien (D), and Elizabeth Rochford (D) began their first full terms on the bench, marking the first female majority in the court’s history and the first time the court seated more than two Black jurists.

“To my mind, what’s really interesting here is the infusion of new blood,” Northwestern Pritzker School of Law professor Nadav Shoked said in an interview. “We do not normally see on this court such a dramatic transformation.”

“The court is ripe for change, but not just because of the demographics, but their willingness to shake things up as far as some of their traditional rulings,” he said. “Are they willing to reconsider some of those decisions and maybe overrule them? There is definitely a chance for meaningful change.”

No ‘Clunkers’

In the past the justices, were “restrained. They did not view the Supreme Court as a vehicle for enacting policy change, as a vehicle for having sweeping decisions that would have wide ranging impact,” said state appellate lawyer Andrew May, a partner at Neal Gerber Eisenberg LLP.

The newly-composed court is populated with smart judges who show they’re prepared and engaged by the questions they ask. “There really aren’t any clunkers on there anymore,” said a lawyer who has argued before the high court over more than two decades. “They are active to an appropriate level, they are prepared, and they are smart.”

More generally, Shoked said the cumulative talent of the new justices could elevate the Illinois court’s standing into a group held in high esteem by lawyers and academics because of the quality of their reasoning, such as the supreme courts of California, Iowa, Kansas, and New Jersey.

Chief Justice Mary Jane Theis (D) said the high court’s demographic composition is a “big deal” in a Jan. 26 statement. The bench’s diversity “impacts public trust and confidence in the court system.”

The justices’ varying life experiences and collegiality are also keys to an effective court. “I was a public defender and we have a justice who was a state legislator and a justice with experience in the medical field. We don’t have a court made up of justices who were mostly law professors,” she said in her statement.

The courthouse, located in Springfield, offers judges housing accommodations during their deliberations, something Theis said enhances camaraderie among the jurists.

Early Reversals

Shoked and others said the current bench, which could remain unchanged for more than a decade absent retirements, could become more engaged in public policy questions.

For instance, the court upheld, in Rowe v. Raoul, the constitutionality of a first-in-the-nation law that eliminated the state’s cash bail system. Because of that ruling, all suspects of crimes who plead not guilty are freed pending trial unless a judge determines the defendant is a flight risk or threat to the community, in which case they’re detained.

The law is controversial in part because many law enforcement personnel oppose it, saying it will loose criminals on the streets of Illinois. The court has subsequently affirmed several lower-court decisions upholding detentions, shaping the way the new law will be implemented.

In a sharp contrast to an earlier gun-control case, the court reversed Caulkins v. Pritzker and upheld a partial ban on assault weapon and large-capacity ammunition magazine sales. In a 2018 gun-control case, the high court ruled a statutory ban on carrying or possessing a firearm within 1,000 feet of a public schools was unconstitutional.

The court has also ruled in favor of the plaintiffs’ bar, notably in a major privacy case when it ruled in Cothron v. White Castle System Inc. that each violation of the state’s Biometric Information Privacy Act constitutes a distinct actionable violation.

The decision could open the door for large penalties imposed on companies found to violate the law and is being used to press for damages in a separate pending federal case, Rogers v. BNSF Railway Co., in which a judge initially awarded $228 million to plaintiffs.

Engaged Jurists

The new additions are materially changing the court’s dynamics. Holder White is one of the court’s most frequent questioners, while Cunningham can be a sharp inquisitor, at one point cutting off one lawyer she questioned with the admonishment, “That’s not what I’m asking you, sir.”

Theis many times asks lawyers to reframe their arguments in more simple terms.

The addition of more women to the high court’s bench has also introduced the judicial style of female justices wearing white lace collars, as the late US Supreme Court Justice Ruth Bader Ginsburg did. Cunningham frequently wears different collars, while O’Brien wears white lace collars less so but did during two sessions in January.

Rochford favors scarves, and Holder White has worn blouses with crisp collars of their own.

Besides the four women in their first full term, the court includes Theis, the court’s longest-service jurist, Scott Neville (D), and David Overstreet (R). Theis was appointed to the high court in 2010 and elected outright in 2012. Neville was appointed in 2018 to complete the unexpired term of Justice Charles Freeman and was elected to a 10-year term in 2020. He reliably wears bow ties to proceedings.

Overstreet was elected in 2020. Holder White and Cunningham face voters in 2024, each seeking a 10-year term.