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.