“[A]cross the country this year, . . . state judicial races become increasingly politicized over issues such as partisan gerrymandering, abortion and gun rights. Voters in 32 states this year will cast ballots on state supreme court seats, which have become a magnet for spending by national interest groups.”
As the stakes of the independence of state constitutional interpretation rise, we are certain to see this kind of spending rise too.
Republicans are vowing to spend record amounts in key state supreme court races this fall, seeking to take advantage of a favorable national political environment to elect conservative judges at the state level amid deep political divisions.
A string of decisions throwing out Republican-drawn congressional maps in Ohio, North Carolina and Pennsylvania has intensified the party’s determination to install justices who could give lawmakers fresh opportunities to muscle through more advantageous maps.Report ad
“The stakes in this election are going to be as high as the Senate race,” said Robert Paduchik, the Republican chair of Ohio, where an open U.S. Senate seat is up for grabs.
There are nearly 90 state supreme court seats on the ballot nationally this year, according to the elections website Ballotpedia, and control of the top courts in Ohio, North Carolina, Michigan and Illinois are all in play.
This would be ugly even by North Carolina standards.
In 2019–20, state supreme court elections attracted more money — including more spending by special interests — than any judicial election cycle in history, posing a serious threat to the appearance and reality of justice across the country.
Thirty-eight states use elections to choose the justices who sit on their highest courts, which typically have the final word in interpreting state law. Over the past two decades, the Brennan Center has tracked and documented more than $500 million in spending in these races. Our analysis finds that the 2019–20 election cycle was the most expensive ever (adjusted for inflation). In fact, no other cycle comes close to the nearly $100 million that big donors and interest groups spent to influence the composition of state supreme courts in 2019–20.
This unparalleled spending speaks to the power and influence of state supreme courts, which often fly below the public’s radar. While voters were at the polls on Election Day in 2020, for example, the Missouri Supreme Court announced that it would not hear Johnson & Johnson’s appeal of a $2 billion verdict against it in a products liability suit. Massive stakes like these, for both business interests and trial lawyers, are what fueled some of the first high-cost judicial races two decades ago.
Republican Kevin Brobson edged out Democrat Maria McLaughlin to win a spot on Pennsylvania’s highest court, ending a contentious race marked by negative ads and big campaign spending.
Unofficial election results early Wednesday showed Brobson, currently a Commonwealth Court judge, with 53% of the vote. The Associated Press called the race at 1:30 a.m. in his favor.
With Brobson’s projected victory, Republicans will keep one of their two seats on the seven-member court with another election looming. Chief Justice Max Baer, a Democrat, will turn 75 at the end of 2022 and face mandatory retirement.
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.
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 second of three posts:
In our previous post, we discussed a core finding from our new book, Judging Inequality. Based on an analysis of nearly 6,000 equality-relevant cases decided in state supreme courts between 1990 and 2015, we found that state supreme courts issued approximately equal proportions of pro- and anti-equality decisions. Yet, this topline number masks enormous variation in the propensity of particular state high courts to support equality: states like Texas are particularly unlikely to issue pro-equality decisions; the opposite is true in New Jersey.
But the decisions of state high courts are made by judges. Understanding the background characteristics of these judges is essential to understanding the willingness of state high courts to strike down restrictions on voting, to support the rights of same-sex couples, and to provide citizens with full access to justice. Armed with the support of the Russell Sage Foundation and the National Science Foundation, we worked with a team of research assistants to code the background characteristics of nearly 1,000 people who served as full-time judges on the supreme courts in each state during our twenty-six year time period.
Political scientists have long been interested in the relationship between judicial ideology and judicial behavior, so we began our analysis of judge-level behavior in these equality-relevant cases by examining this connection. Based on news articles, ballot designations, and obituaries, we were able to score each judge in our database as either a Democrat or a Republican. Overall, Democrats dominated; about 56 percent of the judges are Democrats and the remaining 44 percent are Republicans.
The conventional wisdom is that Democrats tend to be at least somewhat liberal and that Republicans tend to be at least somewhat conservative. That assumption, however, is subject to some necessary empirical verification. To validate this assumption, we refer to the work of Bonica and Woodruff, who have developed a measure of state supreme court judges’ ideologies that is useful for us. The measure is derived from a mixture of campaign contributions data and the party of the appointing authority (typically, the governor). We find a large partisan difference in ideology according to the judges’ party affiliation: the difference between the average Republican justice and the average Democrat is about two standard deviations, a very large difference indeed
Armed with these data, we can assess change in the make-up of state supreme courts over time. Figure 1 displays the average ideology of the 50 state supreme courts with civil jurisdiction between 1990 and 2015. Lower (more negative) values indicate greater liberalism. The ideology scores are relative, not absolute scores, so zero has no inherent or substantive meaning. That these bars get closer to the zero line over time demonstrates that the state supreme courts have become considerably more conservative from 1990 to 2015. In the early part of the time series, the courts tilted toward the liberal end of the spectrum. At the end of the time series, this tilt righted itself, producing ideological parity between liberal and conservative state high court judges. As to political party attachments, the average state supreme court in 1990 was 34 percent Republican. By 2000, this figure increased to 45 percent. By 2015, the average state high court was 54 percent Republican.
Figure 1: The average percentage ideology of state supreme courts, by year.
How well does our measure of ideology predict judges’ votes in equality relevant cases?
Figure 2 shows the relationship between judicial ideology and judicial behavior in our dataset. Perhaps unsurprisingly, there is a noticeable negative relationship between ideology and judges’ willingness to support equality. Even without accounting for differences in states, cases, or time, knowing that a judge is liberal or conservative is enough to predict with some degree of confidence how that judge is likely to decide an equality-relevant case.
Figure 2: The relationship between the ideology of state supreme court justices and the percentage of equality-relevant cases in which they voted in a pro-equality direction. The figure is limited to justices who decided at least 10 cases in our dataset.
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.
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 first of three posts:
For the past two decades, social scientists have looked with renewed interest at the problem of inequality in the United States, teaching us that at least some portion of the growing political, legal, economic, and social inequality in the U.S. is a function of the policy decisions made by U.S. political institutions, particularly the executive and legislative branches.
Courts are also powerful and efficacious policymakers, issuing decisions about the boundaries of the government’s ability to regulate the economy and the depth and distribution of citizens’ rights and responsibilities. Yet, with only a few exceptions, we know little about the extent to which the judiciary—at any level of government—has played a role in the inequality crisis in the United States.
While the U.S. Supreme Court issues a declining number of opinions each year, the 52 state supreme courts (Texas and Oklahoma have separate civil and criminal high courts) have the final say on most cases filed in the United States. Indeed, as interest groups recognize, these institutions are incredibly potent and relevant policymakers.
We take up this challenge in Judging Inequality, a new book published recently by the Russell Sage Foundation. With support from the National Science Foundation and the Russell Sage Foundation, we created an original dataset of nearly 37,000 votes in about 6,000 equality-relevant cases decided in the 50 states between 1990 and 2015. We divide the cases into three broad policy domains. First, we code rulings concerning the rights of minorities, including poor people. This issue area involves cases relating to school finance funding equality, gay rights, and election law. Second, the dataset includes cases about the rights of workers and employees, including cases concerning employment at will doctrines and collective bargaining. The final issue area is cases relating to access to the state’s justice instructions. Cases in this issue area involve mandatory arbitration, class action, attorneys’ fees, and damage caps.
The core of our analysis is the 6,000 state supreme court decisions relevant to political, legal, economic, and social inequality. We therefore begin the discussion of our findings with an examination of the outcomes in these cases: do the courts’ rulings advance or slow greater inequality? A team of nearly 50 research assistants read each case and coded them according to the court’s disposition on the merits. In election law, for example, we asked coders whether the court’s decision expanded opportunities for participation. To aid coders, we provided specific exemplars of pro-equality decisions: for example, those that remove barriers to voting (e.g., Voter ID laws), allow initiatives or referenda to be placed on the ballot, lessen the control of political parties over ballot access, and require the disclosure of campaign donors.
Overall, we found that state supreme courts decided cases in pro- and anti-equality directions equally: 47 percent of the cases in our dataset were decided in a pro-equality direction; 53 percent were not. Among election law cases specifically, the gap is slightly larger, but not overwhelming: about 58 percent of the election law cases in our dataset were decided in a pro-equality direction.
Particularly noteworthy is the cross-state variation in pro-equality outcomes, as the figure below illustrates. While most states vary in a band from about 40 percent to 60 percent of their decisions favoring greater equality—a significant range in itself—a handful of state supreme courts stand out as outliers. The Arizona, New Jersey, and Kentucky courts issued an unusually large percentage of pro-equality decisions, while the state supreme courts in seven states issued an unusually low percentage of such decisions. The Texas Supreme Court is the most anti-equality court in the country, followed by the Indiana Supreme Court. Across America, the rights you have depend on where you live.
Figure 1
This figure aggregates outcomes in all equality relevant cases decided between 1990 and 2015.
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.
G.O.P. legislators, dozens of whom supported overturning the state’s election results to aid former President Donald J. Trump, are moving to change the entire way that judges are selected in Pennsylvania, in a gambit that could tip the scales of the judiciary to favor their party, or at least elect judges more inclined to embrace Republican election challenges.
The proposal would replace the current system of statewide elections for judges with judicial districts drawn by the Republican-controlled legislature. Those districts could empower rural, predominantly conservative areas and particularly rewire the State Supreme Court, which has a 5-to-2 Democratic lean.
Democrats are now mobilizing to fight the effort, calling it a thinly veiled attempt at creating a new level of gerrymandering — an escalation of the decades-old practice of drawing congressional and state legislative districts to ensure that political power remains in one party’s hands. Democrats are marshaling grass-roots opposition, holding regular town hall events conducted over Zoom, and planning social media campaigns and call-in days to legislators, as well as an enormous voter education campaign. One group, Why Courts Matter Pennsylvania, has cut a two-minute infomercial.
Republicans in Pennsylvania have historically used gerrymandering to maintain their majority in the legislature, despite Democratic victories in statewide elections. Republicans have controlled the State House of Representatives since 2011 and the State Senate since 1993.
Current schedules for the legislature make it unlikely the Republicans could marshal their majorities in the House and Senate to pass the bill by Wednesday and put the proposal before voters on the ballot in May. Passing the bill after that date would set up a new and lengthy political war for November in this fiercely contested state.
Republicans have some history on their side: Pennsylvania voters tend to approve ballot measures.
“You should be very suspicious when you see a legislature who has been thwarted by a Supreme Court in its unconstitutional attempts to rig the democratic process then trying to rig the composition of that Supreme Court,” said Wendy Weiser, the director of the Democracy Program at the Brennan Center for Justice.
A state House panel narrowly advanced a measure Wednesday aimed at giving the Republican-controlled legislature the power to draw districts for electing appellate court judges in Pennsylvania, a major shift away from the current statewide contests.
The majority party has made overhauling the courts a priority after a slew of unsuccessful litigation involving the administration of the 2020 election as well as the coronavirus pandemic. But critics warn the change is an attempt to exert control over the judiciary branch.
The House Judiciary Committee voted 13-12 in favor of the proposed constitutional amendment, which would affect races for state Commonwealth, Superior, and Supreme Courts. If passed by the full House and Senate by Feb. 18, it would be before voters for the May 18 primaries.
Republicans contend electing judges by district will lead to more geographic representation. A majority of the 31 appellate judges are from either Philadelphia or Allegheny County — including four of the seven Supreme Court justices — but those areas make up less than a quarter of the state’s population….
But opponents of the amendment said it would threaten judges’ ability to render statewide decisions without influence, because they would be beholden to a regional constituency and to lawmakers who could draw them out of a district if they don’t like a judge’s ruling. Lawmakers could also gerrymander the districts to ensure the judges they want are elected.
The Court in Carney v. Adams found that the plaintiff lacked standing because he was not ready and able to serve as a judge.
Amy Howe for SCOTUSBlog:
The justices start their new term on Monday, at a time when the Supreme Court is at the center of a bitter battle over President Donald Trump’s nominee to succeed Justice Ruth Bader Ginsburg, who died last month at the age of 87. If Judge Amy Coney Barrett is confirmed, it could cement a decisive conservative majority on the court for decades to come. With the ideological balance on the Supreme Court very much at the forefront of many people’s minds, it is perhaps fitting that in their first oral argument of the term the justices will consider whether a provision in the Delaware constitution that seeks to ensure bipartisanship in the state’s courts violates the U.S. Constitution.
Under the Delaware constitution, judges are appointed by the governor for 12-year terms and must be confirmed by a majority of the state senate. The state’s constitution also imposes additional limitations on the governor’s appointments. One section, known as the “bare majority” provision, directs that no more than a bare majority of the judges on the state’s five main courts can be affiliated with any one political party. Another section, known as the “major party” provision, applies to the three courts known as the “business” courts: the Delaware Supreme Court, the Court of Chancery and the Superior Court. It divides the seats on those courts between the two major political parties – currently the Democratic Party and the Republican Party.
The case before the U.S. Supreme Court on Monday, Carney v. Adams, was filed by John Adams, who became a lawyer in 2000. A registered Democrat, Adams worked as a family-law lawyer in the Delaware Department of Justice from 2003 to 20015. Adams changed his party affiliation in 2017 to Independent and decided that he wanted to serve as a judge, but he believed that he would not be able to apply for any future vacancies on the business courts because he wasn’t a Democrat or a Republican. Adams went to federal court in Delaware, where he argued that the “bare majority” and “major party” provisions violate the First Amendment to the U.S. Constitution by limiting a judicial candidate’s freedom to associate with the political party of his choice.
Jill Karofsky NYT oped:
Now, over two weeks later, we have an uptick in Covid-19 cases, especially in dense urban centers like Milwaukee and Waukesha, where few polling places were open and citizens were forced to stand in long lines to cast a ballot. It will take time to compile and analyze the data, but the number of people who voted in person and have tested positive is growing.
It’s important to note three significant facts. First, both court decisions — from the U.S. and Wisconsin Supreme Courts — are seen as being along partisan lines, with allies of Republicans refusing to delay the election. Second, because of the pandemic, the justices of neither of those courts actually met in person when discussing and voting these cases — but they forced many people who wanted to vote, to vote in person. And third, every member of the Wisconsin Supreme Court had already voted early. They weren’t putting themselves at risk.
It’s my view that these decisions were wrong on the law, and they were wrong on process. We shouldn’t legislate from the bench. There was no time for full briefs or oral arguments and no time to fully examine the issues. The U.S. Supreme Court especially erred by writing into law a postmark requirement that they didn’t have the time to think through and that caused tremendous confusion in my state.
Most observers assume these last-minute decisions not only contributed to chaos, but also weren’t respectful of the law or a deliberate process. Even if one believed that the governor’s moves to postpone the election were wrong, it was incumbent on these courts to take the time to review the situation completely — instead of granting the governor only minutes to file a response to a lawsuit the day before an election.
I find it unconscionable that Wisconsin voters were forced to choose between their safety and having their voices heard in our democracy. The right to vote is fundamental to the American creed. Courts making partisan decisions, sending people out to vote in the middle of a global pandemic, is exactly what’s wrong with a judiciary that has become too political, and I think a deliberate attempt to suppress the vote in Wisconsin.