A Tale of Three Judges

Earlier this week, the Idaho Supreme Court announced that Justice Robyn Brody had been elected chief justice by her colleagues, succeeding outgoing Chief Justice Richard Bevan, who will retire on October 30. Brody’s term as chief justice will begin on October 1.

Last year, I explained how the system in which judges often retire mid-term turns Idaho’s judicial elections into a farce:

Technically, judges in Idaho are accountable to voters, but in reality, they owe their positions to an entrenched system overseen by the Idaho Judicial Council. Four of the five current Supreme Court justices were appointed to their positions by the governor, who receives a list of qualified candidates from the Council.

I don’t think it’s far-fetched to compare this system to a cartel, as its purpose appears to be ensuring that only insiders are ever considered. Both the Idaho State Bar—a self-governing agency operating under the Supreme Court—and the Judicial Council consist of figures whose priority is to protect the existing system.

Earlier this year, the Judicial Council—which is chaired by Chief Justice Bevan—submitted three names to Gov. Brad Little:

• Leslie Hayes, a judge in the Office of Administrative Hearings
• Jason Scott, a judge in Idaho’s Fourth Judicial District
• Cynthia Yee-Wallace, a judge in Idaho’s Fourth Judicial District

Gov. Little has not made an appointment as of this writing.

All that said, Robyn Brody is the only current member of the Supreme Court to have reached the bench via a competitive election. In 2016, then-Chief Justice Jim Jones completed his term rather than retiring early, setting up a contest for the open seat. Brody and then-State Senator Curt McKenzie advanced to the runoff after taking the top two positions in the May election, and Brody defeated McKenzie with 53.8% of the vote that November.

Brody wrote the majority opinion in Planned Parenthood v. Idaho, a 3–2 decision that upheld Idaho’s laws banning abortion. The dissenters in that case were Justices Colleen Zahn, who remains on the Supreme Court, and John Stegner, who retired in 2023. Stegner is currently running an independent campaign for governor, having raised nearly $500,000 from a variety of contributors, including the maximum contributions from Democratic megadonors A.J. and Susie Balukoff, as well as Tom Arkoosh, the attorney who ran as a Democrat for attorney general against Raúl Labrador in 2022.

Stegner recently boasted that polling shows him with a commanding lead over Gov. Little in a head-to-head matchup. However, the poll was conducted by Change Research, an unabashedly left-wing organization that has a picture of Kamala Harris at the top of its homepage, so I would take it with a grain of salt. It seems likely that the Stegner campaign is using the same tactic used by the Todd Achilles campaign that successfully pushed Democratic Senate nominee David Roth out of the race.

One more Idaho judge was in the news this week. Lynn Winmill was appointed by President Bill Clinton to serve as a judge for the U.S. District Court for the District of Idaho. Historically, presidents have tended to give deference to a state’s two U.S. senators in appointing judges. In 1995, Clinton followed the lead of Sens. Larry Craig and Dirk Kempthorne, who convened a bipartisan commission that vetted 38 candidates before recommending Winmill as one of three finalists.

Winmill took senior status in 2021, giving him greater flexibility over which cases he hears. At the time, Idaho had only two federal district judges, and Winmill said the state “desperately” needed a third. That vacancy was eventually filled in 2023, when President Joe Biden appointed Amanda Brailsford, a former Idaho Court of Appeals judge, to the federal bench. Nevertheless, Winmill continues to carry a large caseload.

Judge Winmill, therefore, has a good chance of being the first stop for federal issues originating in Idaho, and as someone appointed by a Democratic president, his decisions are often denounced by Idaho conservatives. Over the past few years, Winmill has ruled that prisoners deserve state-subsidized sex-change surgeries, that Idaho’s ban on transgender surgeries for children was unconstitutional, and contravened DHS enforcement in Idaho.

This week, Judge Winmill ruled in a case brought by Dr. Stacy Seyb that Idaho cannot ban abortion in cases where a pregnant woman threatens suicide or self-harm should the pregnancy continue. Attorney General Labrador had harsh words in response to the ruling:

Judge Winmill did exactly what the Supreme Court rejected in Dobbs: he legislated from the bench and manufactured a new constitutional right to abortion. The Supreme Court made clear that abortion policy belongs to the people and their elected representatives, not a single federal judge. Not only did he ignore Dobbs, he compounded that mistake by ignoring clear precedent stating that district judges lack authority to issue universal injunctions. We will appeal immediately, and we are confident this decision will be overturned.

As a federal judge, Lynn Winmill is outside the jurisdiction of Idaho’s judicial branch. The federal district court system is part of the federal judicial branch, which is led by the U.S. Supreme Court. The next step in appealing rulings by Judge Winmill is the Ninth Circuit Court of Appeals, and, following that, the Supreme Court. Issues of federal jurisprudence go through Winmill’s court, while state-level issues are decided by Idaho’s district judges, as well as the Supreme Court and Court of Appeals.

I am continuing to build out the Judicial Branch section of Idaho Insider in an effort to bring more understanding and transparency to our complex legal system. Hopefully, we will see reforms in the near future that allow judges and justices to be more accountable to voters, rather than to a small cartel of insiders. The first two years of the second Trump administration have shown how much power federal judges have to dictate policy in our country. It’s important for engaged citizens to keep a close eye on our own judicial branch as well.

About Brian Almon

Brian Almon is the Editor of the Gem State Chronicle. He also serves as Chairman of the District 14 Republican Party and is a trustee of the Eagle Public Library Board. He lives with his wife and six children in Eagle.

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