Supreme Shuffle: Missouri’s high court prepares to change two judges at once

The last two judges to join the Missouri Supreme Court did so over the course of four years. The next two could be in place just four months from now.

On June 20, Judge George W. Draper III officially announced that he will step down from the Supreme Court on Aug. 4, a day before he reaches the constitutionally mandated retirement age of 70. Judge Patricia Breckenridge will soon follow, as she faces mandatory retirement in October.

It’s the first time in more than three decades that two Supreme Court judges will be selected in a single calendar year. Both selections fall to Gov. Mike Parson, who previously named Judge Robin Ransom to the court. He will be the first Missouri governor since Gov. Bob Holden to appoint three judges to the state’s high court.

For the court, as well as those who practice there and depend on its decisions, it’s hard to predict just how much change the two new judges will bring.

“Two-sevenths of the court is leaving in a very, very quick period of time, said Chuck Hatfield, a partner at Stinson who frequently litigates in the Supreme Court. “That’s a big deal.”

The Appellate Judicial Commission plans to meet Aug. 21 to 23 at the Supreme Court Building in Jefferson City to publicly interview applicants for Draper’s seat. Applications will be accepted through July 21. No process has been announced for Breckenridge’s impending vacancy, and it’s not clear exactly when she’ll leave the court.

Draper, who was appointed to the Supreme Court in 2011 and was its chief justice from July 2019 through June 2021, is one of three Black judges ever to have served there. He is one of the rare judges to have served at every level of the judiciary. He was appointed in 1994 as an associate circuit judge in St. Louis County and was elevated to the circuit bench in 1998. He was named to the Missouri Court of Appeals Eastern District in 2000 and served as its chief judge from 2005 to 2006.

Draper, through the court’s communications counsel, declined a request for an interview.

A lost bloc

The Supreme Court currently has four judges who were appointed by Republican governors and three by Democratic governors. Parson’s selections will change the partisan mix to 5-2.

The party of the appointing governor, however, is not a reliable predictor of a Supreme Court judge’s voting tendencies, according to an analysis by Missouri Lawyers Media. Draper, who was appointed by Democratic Gov. Jay Nixon, and Breckenridge, an appointee of Republican Gov. Matt Blunt, vote together in more than 60 percent of split cases, a better record of agreement than they have with any other judge.

In contrast, Draper agreed in just 31 percent of split cases with Judge Paul C. Wilson, whom Nixon also named to the court. Breckenridge has a similar percentage of agreement with Judge Zel M. Fischer, a fellow Blunt appointee.

Draper and Breckenridge frequently pushed back against the court’s majority. Of the 26 split decisions issued since Ransom joined the court in 2021, Draper or Breckenridge or both were on the losing side in 19. In eight of those cases, they were the only two dissenters.

Even if Parson’s two appointees diverge from the majority less often than Draper and Breckenridge do, it won’t necessarily bring a major shift to the court’s jurisprudence. The 26 split cases constitute only about a quarter of the court’s total cases in that period; most of the time, Supreme Court rulings are unanimous or feature concurring opinions.

“I really doubt when it comes to the actual jurisprudence that it’s going to make a significant impact,” Hatfield said. The real change, he said, could come behind the scenes if the new judges have differing views on such matters as the types of cases the court should take.

Priorities

Parson’s choices ultimately will depend not only on his priorities for the seat but also on who applies for the vacancy and which of those three are nominated. He has the potential to have more say in the process than most governors have enjoyed: As of April, he named all three lay members of the Appellate Judicial Commission, whose three non-lawyer members serve six-year staggered terms.

There are several considerations that could become important:

Women on the court:

Just five women have served on the court in its history, three of whom are there now. Depending on Parson’s selections, Breckenridge’s retirement could leave the court with as few as two female judges. Conversely, the court could become majority female for the first time in its history —possibly fleetingly so, if Draper’s successor is a woman but Breckenridge were to then be replaced by a male judge.

According to a Missouri Lawyers Media analysis of Parson’s appointments, 52 of his 124 judicial picks have been women. They include three female judges named to the Southern District Court of Appeals — which made that court majority female for the first time — and Ransom, his previous selection for the Missouri Supreme Court.

Racial balance:

Ransom is one of just three Black judges ever to have served on the high court. Following Draper’s departure, however, she could be the only one.

Whether Parson — who has said repeatedly race doesn’t factor into his selections — has an opportunity to further diversify the court will partly depend on the makeup of the pool of applicants. In 2021, Ransom was one of four minority applicants out of 25, according to data from the Appellate Judicial Commission. In 2017, just one of the 31 applicants was a minority — Judge Lisa White Hardwick of the Court of Appeals Western District, who made the panel but lost the appointment to Judge W. Brent Powell.

The Southern District:

The last Supreme Court judge to hail from the 44-county territory of the Southern District was Judge John Holstein, who served on the court from 1989 to 2002. With two vacancies falling to a governor from Polk County, which is part of the Southern District, there may be no better chance.

“I feel like we have a lot of talent in southwest Missouri, and it seems kind of crazy to me that there would ever be a time when we don’t have at least one representative from the Southern District,” said Crista Hogan, executive director of the Springfield Metropolitan Bar Association. “Geographic diversity should not be overlooked.”

Depending on who applies for the seat, Parson potentially has plenty of familiar names from which to pick. Since 2019, the governor has made 14 appointments under the Nonpartisan Court Plan to the Springfield-based appeals court and the Greene County Circuit Court, with more to come.

Private practice:

The last Supreme Court judge on the court with no prior judicial experience was William Ray Price Jr., who joined the court in 1992 from a predecessor to today’s Lathrop GPM in Kansas City and joined Armstrong Teasdale in St. Louis upon his retirement in 2012.

Three of the last four high court panels have included a lawyer in private practice, but recent governors have tended to favor candidates with a judicial record. The Supreme Court’s seven current judges include four former members of the Court of Appeals and three one-time trial judges. Appellate judges have been particularly popular; eight of the last 10 Supreme Court panels have featured at least one appellate court judge, six of whom were named to the court.

Government experience:

The Missouri Supreme Court has a huge impact on Missouri state government, yet few of its current members have direct experience with its operations, either through civil-service work or elected office. Currently, Judge Paul C. Wilson best exemplifies that role, as he was a top lawyer under then Attorney General and later Gov. Jay Nixon, who ultimately named him to the court.

The last one-time elected official to sit on the Supreme Court was Judge Ronnie White, a former member of the Missouri House who was on the court from 1995 to 2007 and is now on the federal bench. Other judges have come from unelected positions: Judge Duane Benton (1991-2004) had been director of the Department of Revenue; Judge Edward “Chip” Robertson (1985-1998) was chief of staff to Gov. John Ashcroft, while Judge Michael Wolff (1998-2011) was counsel to Gov. Mel Carnahan. (Not coincidentally, Benton, Robertson and Wolff were named to the court by the governor they served.)

“We had probably a more nuanced view of how state government works, and when you say ‘do this’, which agencies have to jump and do things,” Wolff said in an interview.

Wolff, who watched the departure of five colleagues while he was on the court and was himself succeeded by Draper, said every vacancy essentially creates a new court.

“You change one person, you’ve kind of changed the personality of the entity, of the group,” he said.

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