I am pleased to welcome to ELB Book Corner James L. Gibson and Michael J. Nelson, authors of the new book, Judging Inequality: State Supreme Courts and the Inequality Crisis. (Readers using this link and the code JUDGING get a 20 percent discount.) Here is their final of three posts:
Schoolchildren in America are often taught that courts are “different” from the legislative and executive branches of government. Because they have high levels of judicial independence, courts are able to stand up against the tyrannical inclinations of the popularly-elected branches of government to protect the rights of society’s underdogs.
In Judging Inequality, written with support from the Russell Sage Foundation and the National Science Foundation, we challenge this view of courts. Judicial independence, we argue, does not necessarily lead to a greater respect for the rights of underdogs. Rather, it does nothing more than provides judges with the opportunity to enact their policy preferences into law without fear of losing one’s job. Indeed, these substantial grants of judicial independence, in practice, might simply make it easier for judges to do “the right thing,” as the judges see it.
For this reason, courts present a potentially dangerous threat to the governing coalition that controls the legislative and executive branches of government. A court with preferences that are not aligned with elites’ policy goals could present a substantial hurdle to the enactment of the dominant political coalition’s policy goals. Thus, courts with conflicting policy preferences may present an existential threat to the ability of traditionally elected branches of government to make the policies their constituents sent them to the capitol to enact. In the eyes of these elites, it is important to do what they can to ensure that the state’s judiciary does not go astray.
At first glance, it might seem that state legislators and governors have only minimal power to affect the composition of state high courts. After all, state supreme courts in the United States are notoriously nearly unique worldwide in the use of popular elections to fill their high benches and retain their judges. However, our data reveal that nearly a majority of “elected” state supreme court justices are initially appointed to their offices. This fact stands in addition to the large numbers of judges who are formally appointed to their positions. That a vast majority of state supreme court justices are placed on the bench by elites, rather than the mass public, goes some distance toward explaining how state supreme courts may have a considerable degree of congruence and compatibility with the other branches of state government.
Indeed, Figure 1 reports the percentages of state supreme court justices who initially joined the state supreme court via an interim appointment. Note that this figure examines the selection method in use at the time the justice was appointed even if that system was no longer in use during the 1990-2015 period. Note that Louisiana prohibits interim appointment judges from later standing for election to a full seat on its high court. The most striking percentage belongs to Minnesota, which uses nonpartisan elections to select its replacement justices. Notably, of the 26 justices serving on the Minnesota Supreme Court from 1990 to 2015, all but one joined the court via an interim appointment. Note as well that Minnesota explicitly designates the incumbent (if there is one) on the ballot presented to the voters in that state.
This strong level of control over initial selection is potent. While state supreme court justices regularly face the electorate, the incumbency advantage is strong in judicial elections. Moreover, judges who face reappointment (rather than reelection) are nearly always reappointed. As a result, many state supreme court justices serve for long periods of time. This fact amplifies the importance of initial selection, which, again, is typically the prerogative of dominant political elites.
As a result—and just as Dahl taught us about the U.S. Supreme Court nearly a half-century ago—state supreme courts are generally part of the dominant governing coalition in a state at a given time. To paraphrase Dahl:
The fact is, then, that the policy views dominant on the [state supreme courts] are never for long out of line with the policy views dominant among the lawmaking majorities [in their states]. Consequently it would be most unrealistic to suppose that the [state high courts] would, for more than a few years at most, stand against any major alternatives sought by a lawmaking majority.
Figure 1: The percentage of state high court judges who were initially appointed to their position in states that formally use elections to select justices.
This research was conducted with the support of the National Science Foundation (SES-1456568 and SES-1456580) and the Russell Sage Foundation (G-1962). Any opinions, findings, and conclusions or recommendations expressed here are the authors’ alone and do not necessarily reflect the views of the National Science Foundation or of the Russell Sage Foundation.