Hostname: page-component-745bb68f8f-s22k5 Total loading time: 0 Render date: 2025-01-09T05:39:30.378Z Has data issue: false hasContentIssue false
  • English
  • Français

Supreme Court Elections: How Much They Have Changed, Why They Changed, and What Difference It Makes

Published online by Cambridge University Press:  27 December 2018

Lawrence Baum
Get access Rights & Permissions [Opens in a new window]

Abstract

This essay draws on four recent studies of elections to state supreme courts in the United States to probe widely perceived changes in the scale and content of electoral campaigns for seats on state supreme courts.1 Evidence from these studies and other sources indicates that changes have indeed occurred, though they are more limited than most commentaries suggest. These changes stem most directly from trends in state supreme court policy that have attracted interest-group activity, especially from the business community. Like their extent, the effects of change in supreme court campaigns have been meaningful although exaggerated by many observers. What we have learned about changes in supreme court elections has implications for choices among selection systems, but those implications are mixed and complex.

Type
Review Essay
Information
Law & Social Inquiry , Volume 42 , Issue 3 , Summer 2017 , pp. 900 - 923
Copyright
Copyright © American Bar Foundation, 2017 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

References

American Bar Association. 2003. Justice in Jeopardy. Chicago: American Bar Association.Google Scholar
Anderson, Sarah E., and Harbridge, Laurel. 2014. The Policy Consequences of Motivated Information Processing Among the Partisan Elite. American Politics Research 42:700–28.Google Scholar
Arbour, Brian K., and McKenzie, Mark J. 2010. Has the “New Style” of Judicial Campaigning Reached Lower Court Elections? Judicature 93:150–60.Google Scholar
Baum, Lawrence, and Canon, Bradley C. 1982. State Supreme Courts as Activists: New Doctrines in the Law of Torts. In State Supreme Courts: Policymakers in the Federal System, ed. Porter, Mary Cornelia and Alan Tarr, G. Westport, CT: Greenwood Press.Google Scholar
Baum, Lawrence, Gray, Thomas R., and Klein, David. 2017. Measuring the Impact of Election Outcomes on Voting in State Supreme Courts. In Judicial Elections in the 21st Century, ed. Bonneau, Chris W. and Hall, Melinda Gann. New York: Routledge.Google Scholar
Baum, Lawrence, Klein, David, and Streb, Matthew J. Forthcoming. The Battle for the Court: Interest Groups, Judicial Elections, and Public Policy. Charlottesville: University of Virginia Press.Google Scholar
Behrens, Mark A., and Silverman, Cary. 2002. The Case for Adopting Appointive Judicial Selection Systems for State Court Judges. Cornell Journal of Law and Public Policy 11:273–360.Google Scholar
Beienburg, Sean, and Frymer, Paul. 2016. The People Against Themselves: Rethinking Popular Constitutionalism. Law & Social Inquiry 41:242–66.Google Scholar
Berdejó, Carlos, and Yuchtman, Noam. 2013. Crime, Punishment, and Politics: An Analysis of Political Cycles in Criminal Sentencing. Review of Economics and Statistics 95:741–56.Google Scholar
Binder, Sarah A., and Maltzman, Forrest. 2009. Advice and Dissent: The Struggle to Shape the Federal Judiciary. Washington, DC: Brookings Institution Press.Google Scholar
Bonneau, Chris. 2007. The Effects of Campaign Spending in State Supreme Court Elections. Political Research Quarterly 60:489–99.Google Scholar
Bonneau, Chris W., and Cann, Damon M. 2011. Campaign Spending, Diminishing Marginal Returns, and Campaign Finance Restrictions in Judicial Elections. Journal of Politics 73:1267–80.Google Scholar
Bonneau, Chris W., and Gann, Melinda Hall. 2009. In Defense of Judicial Elections. New York: Routledge.Google Scholar
Brace, Paul, and Boyea, Brent D. 2008. State Public Opinion, the Death Penalty, and the Practice of Electing Judges. American Journal of Political Science 52:360–72.Google Scholar
Canes‐Wrone, Brandice, Clark, Tom S., and Kelly, Jason P. 2014. Judicial Selection and Death Penalty Decisions. American Political Science Review 108:23–39.Google Scholar
Cann, Damon M. 2002. Campaign Contributions and Judicial Behavior. American Review of Politics 23:261–74.Google Scholar
Cann, Damon M. 2007. Justice for Sale? Campaign Contributions and Judicial Decisionmaking. State Politics and Policy Quarterly 7:281–97.Google Scholar
Cann, Damon M., and Yates, Jeff. 2008. Homegrown Institutional Legitimacy: Assessing Citizens' Diffuse Support for State Courts. American Politics Research 36:297–329.Google Scholar
Carrington, Paul D. 2011. Public Funding of Judicial Campaigns: The North Carolina Experience and the Activism of the Supreme Court. North Carolina Law Review 89:1965–2010.Google Scholar
Caufield, Rachel P. 2007. The Changing Tone of Judicial Election Campaigns as a Result of White . In Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections, ed. J. Streb, Matthew. New York: New York University Press.Google Scholar
Cheek, Kyle, and Champagne, Anthony. 2005. Judicial Politics in Texas: Partisanship, Money, and Politics in State Courts. New York: Peter Lang.Google Scholar
Cooper, Michael. 2006. With New Pick, Pataki Puts Mark on Highest Court. New York Times, August 19, B6.Google Scholar
Daniels, Stephen, and Martin, Joanne. 2000. “The Impact That It Has Had Is Between People's Ears”: Tort Reform, Mass Culture, and Plaintiffs' Lawyers. DePaul Law Review 50:453–96.Google Scholar
Derthick, Martha, and Quirk, Paul J. 1985. The Politics of Deregulation. Washington, DC: Brookings Institution.Google Scholar
Dubois, Philip L. 1980. From Ballot to Bench: Judicial Elections and the Quest for Accountability. Austin: University of Texas Press.Google Scholar
Dubois, Philip L. 1984. Voting Cues in Nonpartisan Trial Court Elections: A Multivariate Assessment. Law & Society Review 18:395–436.Google Scholar
Egelko, Bob. 2006. Former Justice Warns of Threat to Judiciary. San Francisco Chronicle, November 4, B2.Google Scholar
Fitzpatrick, Brian T. 2009. The Politics of Merit Selection. Missouri Law Review 74:675–709.Google Scholar
Frederick, Brian, and Streb, Matthew J. 2011. The Cost of Going for the Gavel: Individual Candidate Spending in Intermediate Appellate Court Elections. Justice System Journal 32:25–43.Google Scholar
Galanter, Marc. 1986. The Day After the Litigation Explosion. Maryland Law Review 46:3–39.Google Scholar
Georgeakopoulos, Nicholas L. 2000. Discretion in the Career and Recognition Judiciary. University of Chicago Law School Roundtable 7, Issue 1, Article 8.Google Scholar
Geyh, Charles Gardner. 2003. Why Judicial Elections Stink. Ohio State Law Journal 64:43–79.Google Scholar
Gibson, James L. 2007. The Legitimacy of the U.S. Supreme Court in a Polarized Polity. Journal of Empirical Legal Studies 4:507–38.Google Scholar
Gibson, James L., and Caldeira, Gregory A. 2009. Citizens, Courts, and Confirmations: Positivity Theory and the Judgments of the American People. Princeton, NJ: Princeton University Press.Google Scholar
Gibson, James L., Gottfried, Jeffrey A., Delli Carpini, Michael X., and Jamieson, Kathleen Hall. 2011. The Effects of Judicial Campaign Activity on the Legitimacy of Courts: A Survey‐Based Experiment. Political Research Quarterly 64:545–58.Google Scholar
Goelzhauser, Greg. 2016. Choosing State Supreme Court Justices: Merit Selection and the Consequences of Institutional Reform. Philadelphia, PA: Temple University Press.Google Scholar
Goldberg, Deborah, Holman, Craig, and Sanchez, Samantha. 2002. The New Politics of Judicial Elections. Washington, DC: Justice at Stake.Google Scholar
Goldberg, Deborah, Samis, Sarah, Bender, Edwin, Weiss, Rachel, and Rutledge, Jesse. 2005. The New Politics of Judicial Elections 2004. Washington, DC: Justice at Stake.Google Scholar
Goldberg, Deborah, Sanchez, Samantha, and Brandenburg, Bert. 2003. The New Politics of Judicial Elections 2002. Washington, DC: Justice at Stake.Google Scholar
Gordon, Sanford C., and Huber, Gregory A. 2007. The Effect of Electoral Competitiveness on Incumbent Behavior. Quarterly Journal of Political Science 2:107–38.Google Scholar
Grisham, John. 2008. The Appeal. New York: Doubleday.Google Scholar
Gulati, Mitu, Choi, Stephen J., and Posner, Eric A. 2010. Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather than Appointed Judiciary. Journal of Law, Economics, and Organization 26:290–336.Google Scholar
Hall, Kermit. 1984. Progressive Reform and the Decline of Democratic Accountability: The Popular Election of State Supreme Court Judges, 1850–1920. American Bar Foundation Research Journal 1984:345–69.Google Scholar
Hall, Melinda Gann. 1987. Constituent Influence in State Supreme Courts: Conceptual Notes and a Case Study. Journal of Politics 49:1117–24.Google Scholar
Hall, Melinda Gann. 1992. Electoral Politics and Strategic Voting in State Supreme Courts. Journal of Politics 54:427–46.Google Scholar
Hall, Melinda Gann. 1995. Justices as Representatives: Elections and Judicial Politics in the American States. American Politics Quarterly 23:485–503.Google Scholar
Hall, Melinda Gann, and Bonneau, Chris W. 2008. Mobilizing Interest: The Effects of Money on Citizen Participation in State Supreme Court Elections. American Journal of Political Science 52:457–70.Google Scholar
Hanssen, F. Andrew. 2004. Learning About Judicial Independence: Institutional Change in the State Courts. Journal of Legal Studies 33:431–73.Google Scholar
Huber, Gregory A., and Gordon, Sanford C. 2004. Accountability and Coercion: Is Justice Blind When It Runs for Office? American Journal of Political Science 48:247–63.Google Scholar
Kang, Michael S., and Shepherd, Joanna M. 2016. Judging Judicial Elections. Michigan Law Review 114:929–49.Google Scholar
Keeton, Robert E. 1969. Venturing to Do Justice: Reforming Private Law. Cambridge, MA: Harvard University Press.Google Scholar
Klumpp, Albert J. 2011. Judicial Primary Elections in Cook County, Illinois: Fear the Irish Women! DePaul Law Review 60:821–47.Google Scholar
Kunda, Ziva. 1990. The Case for Motivated Reasoning. Psychological Bulletin 108:480–98.Google Scholar
McCall, Madhavi. 2003. The Politics of Judicial Elections: The Influence of Campaign Contributions on the Voting Patterns of Texas Supreme Court Justices, 1994–1997. Politics & Policy 31:314–43.Google Scholar
McDermott, Monika L. 1997. Voting Cues in Low‐Information Elections: Candidate Gender as a Social Information Variable in Contemporary United States Elections. American Journal of Political Science 41:270–83.Google Scholar
McDermott, Monika L. 1998 Race and Gender Cues in Low‐Information Elections. Political Research Quarterly 51:895–918.Google Scholar
McKenzie, Mark Jonathan, and Unger, Michael A. 2011. “New‐Style” Campaigning, Citizen Knowledge, and Sources of Legitimacy for State Courts: A Case Study in Texas. Politics & Policy 39:813–34.Google Scholar
McLeod, Aman. 2012. The Party on the Bench: Partisanship, Judicial Selection Commissions, and State High‐Court Appointments. Justice System Journal 33:262–74.Google Scholar
Nagel, Stuart S. 1961. Political Party Affiliation and Judges' Decisions. American Political Science Review 55:843–50.Google Scholar
Nelson, Michael J. 2011. Uncontested and Unaccountable? Rates of Contestation in Trial Court Elections. Judicature 94:208–17.Google Scholar
Nownes, Anthony J., and Glennon, Colin. 2016. An Experimental Investigation of How Judicial Elections Affect Public Faith in the Judicial System. Law & Social Inquiry 41:37–60.Google Scholar
Olson, Walter. 1991. The Litigation Explosion: What Happened When America Unleashed the Lawsuit. New York: Dutton.Google Scholar
Paris, Michael. 2010. Framing Equal Opportunity: Law and the Politics of School Finance. Stanford, CA: Stanford University Press.Google Scholar
Pérez‐Peña, Richard. 2010. Christie, Shunning Precedent, Drops Justice from Court. New York Times, May 4, A22.Google Scholar
Pinello, Daniel R. 1995. The Impact of Judicial‐Selection Method on State‐Supreme‐Court Policy: Innovation, Reaction, and Atrophy. Westport, CT: Greenwood Press.Google Scholar
Porter, Laura R. 2016. The Necessity of Judicial Independence: Merit‐Based Selection of Arkansas's Court of Last Resort. Arkansas Law Review 68:1061–88.Google Scholar
Rankin, Bill. 2013. Ex‐Justice: Drop Judicial Elections. Atlanta Journal‐Constitution, August 13, 3B.Google Scholar
Reid, Traciel V. 1999. The Politicization of Retention Elections: Lessons from the Defeat of Justices Lanphier and White. Judicature 83:68–77.Google Scholar
Rock, Emily, and Baum, Lawrence. 2010. The Impact of High‐Visibility Contests for U.S. State Court Judgeships: Partisan Voting in Nonpartisan Elections. State Politics & Policy Quarterly 10:368–96.Google Scholar
Rustad, Michael L., and Koenig, Thomas H. 2002. Taming the Tort Monster: The American Civil Justice System as a Battleground of Social Theory. Brooklyn Law Review 68:1–122.Google Scholar
Sample, James, Jones, Lauren, Weiss, Rachel, and Rutledge, Jess. 2007. The New Politics of Judicial Elections 2006. Washington, DC: Justice at Stake.Google Scholar
Schaffner, Brian F., and Diascro, Jennifer Segal. 2007. Judicial Elections in the News. In Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections, ed. Streb, Matthew J. New York: New York University Press.Google Scholar
Schotland, Roy A. 1985. Elective Judges' Campaign Financing: Are State Judges' Robes the Emperor's Clothes of American Democracy? Journal of Law & Politics 2:57–167.Google Scholar
Shaman, Jeffrey M. 2008. Equality and Liberty in the Golden Age of State Constitutional Law. New York: Oxford University Press.Google Scholar
Shepherd, Joanna M. 2009a. Are Appointed Judges Strategic Too? Duke Law Journal 58:1589–1626.Google Scholar
Shepherd, Joanna M. 2009b. The Influence of Retention Politics on Judges' Voting. Journal of Legal Studies 38:169–203.Google Scholar
Shepherd, Joanna M. 2009c. Money, Politics, and Impartial Justice. Duke Law Journal 58:623–85.Google Scholar
Shugerman, Jed Handelsman. 2012. The People's Courts: Pursuing Judicial Independence in America. Cambridge, MA: Harvard University Press.Google Scholar
Skaggs, Adam, da Silva, Maria, Casey, Linda, and Hall, Charles. 2011. The New Politics of Judicial Elections 2009–10. Washington, DC: Justice at Stake.Google Scholar
Stanley, Harold W., and Niemi, Richard G. 2013. Vital Statistics on American Politics 2013–2014. Los Angeles, CA: Sage.Google Scholar
Steigerwalt, Amy. 2010. Battle Over the Bench: Senators, Interest Groups, and Lower Court Confirmations. Charlottesville: University of Virginia Press.Google Scholar
Streb, Matthew J., ed. 2007. Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections. New York: New York University Press.Google Scholar
Streb, Matthew J., and Frederick, Brian. 2009. Conditions for Competition in Low‐Information Judicial Elections. Political Research Quarterly 62:523–37.Google Scholar
Streb, Matthew J., Frederick, Brian, and LaFrance, Casey. 2007. Contestations, Competition, and the Potential for Accountability in Intermediate Appellate Court Elections. Judicature 91:70–78.Google Scholar
Tarr, G. Alan. 2012. Without Fear or Favor: Judicial Independence and Judicial Accountability in the States. Stanford, CA: Stanford University Press.Google Scholar
Wall, Audrey S., ed. 2015. The Book of the States, 2015 ed. Lexington, KY: Council of State Governments.Google Scholar
Ware, Stephen J. 1999. Money, Politics and Judicial Decisions: A Case Study of Arbitration Law in Alabama. Journal of Law & Politics 15:645–83.Google Scholar
Watson, Richard A., and Downing, Ronald G. 1969. The Politics of the Bench and the Bar: Judicial Selection Under the Missouri Nonpartisan Court Plan. New York: John Wiley.Google Scholar
Wold, John T., and Culver, John H. 1987. The Defeat of the California Justices: The Campaign, the Electorate, and the Issue of Judicial Accountability. Judicature 70:348–55.Google Scholar
Caperton v. Massey Coal Co., 556 US 868 (2009).Google Scholar
Republican Party v. White, 536 US 765 (2002).Google Scholar
Williams‐Yulee v. Florida Bar, 135 S. Ct. 1656 (2015).Google Scholar
Caperton v. Massey Coal Co., 556 US 868 (2009).Google Scholar
Republican Party v. White, 536 US 765 (2002).Google Scholar
Williams‐Yulee v. Florida Bar, 135 S. Ct. 1656 (2015).Google Scholar