With terms that last 10 years, having two competitive Illinois Supreme Court contests in a single election cycle – as is the case in the suburbs outside of Cook County this November – is rare and the results potentially significant.
In the northern collar counties, voters have the choice of Republican Mark Curran, a former Lake County sheriff and former prosecutor, or Democrat Liz Rochford, a former assistant state’s attorney who’s been a Lake County Circuit Court judge for a decade.
In the southwestern suburbs, it’s current Republican Supreme Court Justice Michael Burke running against Democrat Mary Kay O’Brien, a former state legislator who’s been an Appellate Court judge for nearly 20 years.
The Dobbs decision that overturned the national right to an abortion has put a particular focus on state courts.
Judicial candidates are bound by a code of conduct that forbids them from openly taking stances on issues that may come before them.
They can’t personally solicit of accept campaign contributions, “make statements that commit or appear to commit the candidate with respect to cases, controversies or issues within cases that are likely to come before the court” and they cannot “knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent.”
Each of the candidates interviewed by WTTW News was careful, particularly in regards to hot topics like abortion and gun rights.
Still, TV ads airing ahead of the Nov. 8 election, particularly those paid for by interest groups, have ascribed views to the candidates.
Burke said claims that make it seem as if he is against abortion even in cases of child rape or incest are false, and smear tactic inappropriate for a judicial race.
Because of judicial canon, “I’m very guarded in what I talk about. So I can say with great sincerity and conviction that I never made those statements. So to impute those statements to me, to ascribe those statements to me, is just pure fabrication and I think that judicial campaigns should be above fabrication.”
Burke said he was part of a DuPage society of Catholic lawyers that previously organized a “red Mass” for members of all faiths to pray for those in the legal profession, but that he has never been a part of the similarly-named Thomas More Society law firm that has brought cases seeking to strike down abortion laws.
(Burke is not a relation of Chicago Ald. Ed Burke nor his wife, Illinois Supreme Court Chief Justice Anne Burke, who is set to retire at the end of next month.)
Michael Burke – the son a former Chicago police officer and father of a policeman, careers he said are tied to his motivation for public service – said he wishes judges didn’t have to run as partisans.
“I cherish the independence of the judiciary from the other two branches of government, and I think this, running a partisan race, kinda lumps us together with the other two branches of government, which I think we should really be trying to separate ourselves from,” he said. “The vast majority of things on the court, really have nothing to do with politics … but ultimately what we do day to day, the administration of the courts, it doesn’t have anything to do with partisan politics.”
Justice Burke has been on the court for two years, as he was appointed to fill the vacancy of a Justice Bob Thomas when the Republican retired in 2020.
He said he's proven himself as a justice, including by serving as the high court’s liaison to a lawyers’ committee charged with improving how Illinois' court system deals with the mentally ill.
Democrat O’Brien said her time as a legislator gives her the best perspective for a job with the responsibility of deciding the legality of the statues the General Assembly passes.
As a state representative from 1996 to 2003, O’Brien chaired the criminal justice committee and served on the audit commission; she said she also sponsored measures to redraft the grain insurance code and to improve consumer access to generic drugs.
“I think that my experience both as a practicing attorney, having 19 years experience on the appellate court, and the depth and breadth of the type of work really makes me perfectly suited to this position,” O’Brien said. “There is a lot at stake. As states begin to look at laws regarding reproductive health and other issues, the state supreme courts are going to be deciding this.”
She stands by ads against Burke, and said they are not a smear.
She says to avoid the appearance of impropriety she will not share her views on abortion, beyond that the Dobbs decision does not reflect constitutional protections.
“The justices they’re using the originalist philosophy, because I think if you look at where we were as a country in the 1860s, women once they were married had no right to own property. They couldn’t vote,” she said. “So we can’t look simply to the history of where our country was at the time an amendment was passed to look at where we should be today.”
O’Brien she doesn’t subscribe to a particular judicial philosophy, so as not to be pigeon-holed.
“We don’t determine what the law is, we simply look at it, we look to see whether or not it fits within our state constitutional framework” and whether the lockstep doctrine calls for following federal precedent, she said.
O’Brien said she is passionate about improving how Illinois courts deal with children who are wards of the state, as status hearings that determine whether children can be reunited with their families are too infrequent.
In addition to issuing opinions, the Illinois Supreme Court has administrative duties, including helping lower courts with the rollout of major changes to the criminal justice system via a controversial new state law known as the SAFE-T Act, which among other changes will eliminate cash bail starting in January
Burke said he will not share a personal opinion on the law given that numerous state’s attorneys have filed lawsuits to reverse it, but he said the Supreme Court has been in front of the issue and will be ready.
O’Brien said the SAFE-T Act gives a lot of discretion to trial judges, and she has worked with many “phenomenal ones” committed to keeping people safe.
In the 2nd District, Republican candidate Curran said he cannot say how he would rule if the SAFE-T Act came before the Supreme Court.
But he said the law will make it harder to find people out on bond who have no reason to return to court without the fear of losing their money, and that’s why members of law enforcement have expressed their concerns about it.
“So there’s nothing to stop them and it will be an infinitely less safe society, state and I think that’s why people just look at it and think it’s crazy. A lot of things the Democrats are doing are crazy,” Curran said.
Curran said he does not ascribe his political leanings as conservative, and that he believes in natural law as written about by President Thomas Jefferson.
In both races, the Democrats have a fundraising advantage, propped mostly by unions, abortion rights groups and $500,000 each to O’Brien and Rochford from Democratic Gov. J.B. Pritzker.
Curran said that and Rochford’s previous campaign contributions to Ald. Ed Burke show that she is part of the Democratic machine; he said he is running so Illinois can have more “balance.”
“Regardless of how you feel about J.B. Pritzker, he’s just giving [Rochford] money to make sure that whatever he wants to do, there’s not going to be any roadblocks. Republicans are in the super-minority status in both the Illinois House and the Illinois Senate so even if (Republican nominee for governor) Darren Bailey were to win, they have enough votes to override any veto, so he can’t really effectuate any legislation,” Curran said. “So really the only chance at stop-gapping that, having a little balance in the state, is to turn the Supreme Court from 4-3 Democrat to 4-3 Republican, and electing me.”
Rochford says it’s Curran who voters should be wary of, given that she said he expressed “extreme political views” on issues that could come before the court when he as the GOP nominee for U.S. Senate in 2020.
“And that is always concerning because it does in fact demonstrate a commitment to a potential outcome in a case, and in that way it is a challenge to the independence that is so necessary in the courts, so essential to our function,” Rochford said.
Rochford said ads that attempt to tie her to indicted former Illinois House Speaker Michael Madigan are a “demonstration of desperation” and have no factual basis.
“My judicial philosophy as its most primary is that courts are here to serve, and that we must be impartial in actions and in decisions and in treatment. And we also have to be innovative and diverse and responsive,” Rochford said.
She said a recent example is the courts having to pivot during the pandemic – under the leadership of the Illinois Supreme Court – from dispensing justice in courtrooms, to digital hearings.
Rochford said she is also dedicated to making sure everyone has access to justice, “especially the poor and the vulnerable,” and that she has translated that by creating help desks for families in crisis.
“I took the lead on creating the first of its kind courtroom in family law for self-represented litigants, to help families without the financial resources to hire attorneys to navigate a complex legal system when everything they care about most is at risk – their children, their home their finances,” she said. “We’ve had great success, we’re still learning.”
The Illinois State Bar Association is among the legal organizations that rate and evaluate judicial candidates.
Rochford and Burke are “highly recommended” and O’Brien is “recommended.”
The ISBA found Curran “not recommended.”
Curran said lawyers don’t like when candidates rise to the top court without having served as a lower-court judge.
Curran said “trail lawyers … recognize that I’m not necessarily and ally, I’m going to call balls and strikes – so they don’t give me any money, they don’t give me any support. They make up a large percentage of the bar association.”