Charles Gardner Geyh (Indiana University Maurer School of Law) has posted this new article on judicial elections on SSRN:

In this essay, I begin with a discussion of established legal theory, which elucidates the difficulties created by calling upon judges to interpret and apply the law in a democratic republic. Next, I synthesize the scholarship, spanning thirteen books, that explains, defends, and critiques the modern era of judicial elections. Read synthetically, this body of work provides a well-developed, three-dimensional understanding of judicial elections at the turn of the 21st century. At the epicenter of the developments that this literature analyzes are battleground states where well-financed interest groups poured money into supreme court races to people high courts with judges whose perspective on tort liability was simpatico with that of their campaign supporters. That literature also reveals that tort reform campaigns in state judicial races later peaked as spending tapered off in the 2010s, signaling a lull in what leading, good-government interest groups denominated the “new politics of judicial elections.  I argue that this lull ended with the 2023 Wisconsin Supreme Court election, which heralded the arrival of a new generation of judicial elections in which state supreme courts are becoming war-torn forums for the resolution of deeply divisive policy questions that the federal courts and the political branches of government have been unwilling or unable to address. It is a development that portends to be of unprecedented intensity and poses new challenges for legal theory and the existing judicial elections literature to explain. And it adds new urgency to an increasingly stark choice: whether to fight to preserve the distinctive role that judiciaries have long played in interpreting and upholding the rule of law; or to acquiesce to a new world order in which judges are politicized actors responsive to their constituencies in ways traditionally associated with the other, so-called “political” branches of government.