Conservative Loses Bid to Oust Arkansas Supreme Court Justice

Justice Karen Baker prevailed against challenger Gunner DeLay, who sought to push the state’s highest court further to the right with his stances on the death penalty and abortion. But the right forced a second justice into a runoff.

Daniel Nichanian | May 25, 2022

(Gunner DeLay/Facebook)

Shortly after news broke earlier this month that the U.S. Supreme Court was poised to overturn Roe vs. Wade, Gunner DeLay took to Facebook to post a brief video. After introducing himself as the “conservative choice” for Arkansas Supreme Court, he implored voters to appreciate the heightened stakes of his upcoming election. “We learned as a nation that Roe vs. Wade will be overturned…, which means that issue will go back to the states,” he said. “In my opinion, that makes the race for the Arkansas supreme court the most important race on your ballot because the next round of legal battles will be fought before the supreme court of our state.”

DeLay lost handily on Tuesday. Justice Karen Baker, an incumbent who has been on the court since 2011 prevailed 64 percent to 36 percent against DeLay, who is a lower-court judge.

In the state’s other contested supreme court election, though, Justice Robin Wynne fell just short of the 50 percent threshold that would have won him an additional term outright and avoided a runoff election. With 99 percent of precincts reporting, he received 49.6 percent, with Chris Carnahan, the former longtime chair of the Republican Party, at 29 percent, and David Sterling, another right-wing candidate, at 22 percent.

Wynne, a former Democratic lawmaker, and Carnahan will now move to runoff, giving conservatives another shot at picking-up a seat.

Judicial races are technically nonpartisan in Arkansas. But conservatives pushed to oust Baker and Wynne this year and lock in right-wing dominance on the court with challengers who have close GOP ties. Many supreme courts are seeing similar tussles for power this year.

The Arkansas supreme court is already no refuge for civil rights. In April, it dismissed a lower-court ruling that had stayed a series of new Republican restrictions on voting rights. Weeks later, in a 4-3 ruling, the court’s most conservative justices eroded the rights of plaintiffs to seek tort remedies. But the court occasionally issues opinions that anger state conservatives, who have come to dominate all other state institutions.

In April, the court enabled a school district to impose a mask requirement, reversing a lower court’s restraining order that had blocked it. DeLay used the ruling as part of his arsenal of attacks against Baker.

DeLay also attacked Baker for a vote that she took in 2019 to vacate a murder conviction; the court had decided, in a 4-3 opinion written by Baker, that a charge had been filed in the wrong jurisdiction. Carnahan also used the issue of capital punishment to attack his opponent. In one campaign mailer, he named “the implementation of the death penalty” as one of the issues that has “suffered in Arkansas because of Justices that don't stay in their lane.” In 2018, the court issued two narrow 4-3 rulings that overturned the state law that governed how Arkansas decides whether a defendant is mentally competent to be executed, holding that it violated the due process of two death-row prisoners.

“There is no consistent progressive voice on the court,” said Jay Barth, a professor emeritus at Hendrix College who was recently appointed director of the Clinton Presidential Library and Museum. “It is a battle between moderates and conservatives.”

Over the past decade, conservative candidates shifted the court rightward by winning court seats after ideologically-charged campaigns, fueled by dark money from right-wing groups.

Baker and Wynne, Barth said, are now part of an inconsistently moderate three-person wing that a fourth justice sometimes joins. The court still has “a little bit of swing,” he quipped, meaning that it is still prone to side with plaintiffs on somes cases that touch on civil rights or criminal defense.

That would end if Baker and Wynne were ousted, Barth told Shorelinescripts before the election, and “the court would not be seen as a real option” for such litigation.

Carnahan, DeLay, and Sterling all promised to steer the court further to the right—and Carnahan will still have his shot in the June runoff. In candidate questionnaires for the Family Council, an Arkansas-based conservative group, they all named former President Donald Trump and U.S. Supreme Court Justice Clarence Thomas as their political and judicial models.

DeLay’s campaign material highlighted a conservative Who’s Who, including former Governor Mike Huckabee, whose daughter is the favorite to become the state’s next governor, and Gun Owners of Arkansas. He told the press that Baker was part of a “liberal, left wing of the court.” His Facebook page features a video promising to protect the “right to bear arms.”

It also displays a picture of him posing next to a logo of the organization Arkansans for Life.

A former Republican lawmaker, DeLay introduced a bill soon after he arrived at the state House in 1995 to restrict abortion righs. “I think we should drop the pretense,” he told the Associated Press. “My history is what it is.”

The court has issued few decisions pertaining to abortion rights in recent years, and Arkansas already adopted a near-total ban on abortions last year that would take effect if the U.S. Supreme Court overturns Roe vs. Wade. But in 2020, in a case involving the murder of a pregnant woman, the court struck down prosecutors’ effort to use the death of an “unborn child” as an aggravating factor in sentencing. The ruling drew a vigorous dissent from conservative Justice Rhonda Wood, who argued that Arkansas law enabled the defendant to be sentenced for “the death of more than one person.”

In a state otherwise dominated by Republicans, who are heavily favored to retain control of the state government in November, a supreme court that conservatives have tried to push even further to the right could face new questions around pregnancy-related state crimes if Roe falls. A redistricting lawsuit also looms for the court to consider in the future. DeLay’s defeat dampens the chances that the right seizes unmitigated control on the court, but the November runoff between Wynne and Carnahan could still remove one of the few checks on the state’s most conservative forces.