This article proposes that elections with substantial amounts of campaign activity change the substance of a state supreme court’s legitimacy from one derived from the court’s legalistic nature to one derived through representation. Using a national survey, it shows that because of this change the perceived legitimacy of courts with robust elections does not induce acceptance of their decisions. Only nonrepresentative courts with the legalistic form of legitimacy can convert their institutional legitimacy into decisional acceptance. This means that even highly legitimate courts with robust elections are ineffective at inducing acceptance. This hinders the ability of those courts to build public support for their decisions, which is essential for the effective functioning of the judiciary. Additional analyses show this effect is not caused by the politicization associated with campaigning but rather through the representation provided by elections.

As judicial elections become increasingly expensive, recusal has emerged as a way to address concerns about the impartiality of judges who receive contributions from lawyers or potential litigants. While it is unclear if strict recusal rules are the best remedy for conflicts of interest created by contributions, they may disincentivize potential donors from investing in judicial campaigns by negating their potential goal of influencing decisions. We consider whether donor behavior in judicial campaigns – especially for those donors most likely to be interested in specifically currying favor with judges – responds to differences in recusal standards. Using data from 219 state supreme court races in 22 states from 2010 to 2020, we find that states with stricter recusal rules attract fewer campaign donations to judicial races, and states with more lax rules attract more overall and, most especially, for attorney donors.

Using data from nearly 5,000 votes cast by more than 400 judges in courts of last resort from all 50 states, we investigate whether there is a relationship between a state's judicial retention method and the likelihood that a judge votes to join a precedent-overturning majority. We find that relative to judges retained by institutions such as judicial commissions or state legislatures, those retained via either partisan or retention elections are significantly more likely to join majorities that overturn precedent. Most of this effect is due to behavior in high-profile cases that garner media attention. We find little evidence that an impending election moderates these effects. Finally, we find no evidence that judges retained via nonpartisan elections treat precedent differently than their institutionally retained colleagues.

Although many people believe that women are disadvantaged by the electoral process, recent research shows women generally do at least as well as men when they run for office. We investigate the gender dynamics of state supreme court elections. We find evidence that women do enjoy an electoral advantage when they run for judicial office. However, unlike previous work, we find that this advantage is highly contingent on the electoral context. Using an original dataset of competitive judicial elections from 1998 to 2014, we find that women only have a significant vote share advantage when they run as a challenger against a sitting incumbent. The advantage does not apply to women as incumbents or in open seat elections. These findings raise important questions about the interplay of institutional barriers and election aversion for the advancement of women in electoral judicial politics.

Does the use of judicial review by unelected judges harm public support for their decisions? Scholars have often answered this question in the affirmative. We examine the extent to which the use of judicial review reduces the ability of judges to achieve acceptance of their decisions, arguing that decisions made by elected judges may be more palatable to the public. Our experimental evidence demonstrates that the public is less prone to accept both decisions made by appointed judges and judicial decisions that strike down laws. However, the public is no more likely to accept the use of judicial review by an appointed court than an elected court. The results have implications both for institutional design in the American states and the microfoundations of judicial independence.

Scholarly research finds that partisan, hard-fought, expensive, and churlish state supreme court campaigns increase voter participation and their support for challenger candidates. These insights, however, are drawn nearly exclusively from competitive state supreme court elections. Little is known about voter behavior in uncompetitive retention elections. Traditionally, these races are not salient to the public given that incumbents raise and spend little-to-no money, and campaigns, parties, and political action committees air few (if any) advertisements. Since 2010, however, such behavior has become more commonplace. I assess voter participation and incumbent performance in 178 state supreme court retention elections from 2002 to 2014. I find that expensive, churlish retention elections are likely to increase voter turnout and to hurt incumbents' efforts to win retention.

The judicial selection classification problem is widely recognized but poorly understood. In this note, I identify the classification problem's three interrelated sources: ambiguous theoretical arguments, varying decision rules for categorizing merit selection states, and not accounting for interim selections in mixed systems. To demonstrate threats to inference posed by the classification problem, I replicate a study on opinion writing productivity in state supreme courts. I also offer straightforward suggestions for resolving the classification problem. Eliminating the classification problem will help ensure that inferences are comparable across studies with respect to the consequences of institutional design choices concerning state judicial selection mechanisms.

Most studies of amicus influence in both federal and state courts assume that the information provided in these briefs is the mechanism through which amici influence court outcomes. However, the question of how individual state supreme court judges respond to this third-party information and whether or not judicial responses are conditioned by differing methods of judicial retention is rarely theorized. Using social-psychological theories of confirmation bias and motivated reasoning, this article investigates how ideological predispositions and electoral institutions structure the responsiveness of state high-court judges to amicus brief information. Utilizing an original dataset of more than 14,000 votes of state high-court judges across three distinct areas of law, this article tests competing theories of amicus influence to determine how state high-court judges utilize amicus information to render judicial decisions. Results are generally supportive of the informational theory of amicus influence in complex areas of law. However, a conditioning relationship of retention method suggests that competitive elections may alter the mechanism of amicus brief influence such that judicial responsiveness to third-party briefs is more closely tied to the reelection and campaign fundraising considerations of individual judges in politically contentious areas of law.

Building upon existing theories of political fundraising and citizen participation in elections, this study examines contributions from individuals as an essential form of political participation in state high court elections from 2000 through 2012. Specifically, I explore the degree to which candidate characteristics, state political environments, and the attributes of state institutions affect the size of individual contributions. The findings of this investigation indicate the participation of contributors in judicial elections closely resembles the activities of voters. Like voters, contributors respond to contextual forces that increase or decrease salience and the political information available to state citizens. Of particular importance are state decisions to use partisan or nonpartisan election designs. Decisions by states to use partisan elections have important consequences for the generosity of contributors with larger donations directed to candidates seeking office in the most professionalized elective state supreme courts.

Judicial elections have two opposing effects on legitimacy perceptions for state supreme courts. Elections not only provide a boost to legitimacy through the chance to hold officials accountable but also involve campaign activity that decreases legitimacy perceptions. This article examines these two opposing effects using a nationally representative survey that includes items assessing diffuse support for state supreme courts. It uses multiple indicators to differentiate between states with highly active election systems involving large amounts of campaign activity and states with less active elections systems that involve little campaign activity. The results from the survey show that the legitimacy of elected courts is higher than appointed courts but only in states with little election activity. In states with high amounts of election activity, the legitimacy of elected courts is lower than appointed courts.

High-profile advocates are pushing states to move away from judicial elections and toward a “merit” method because it purportedly produces the best quality judges. Quality, however, is difficult to measure empirically. Rather than attempt to measure quality, we examine whether certain types of state supreme courts are more forward-looking than others. States are likely to desire forward-looking behavior among judges because it can protect judicial legitimacy, help states to control policy, and could be more efficient than myopic behavior. Using a recent innovation in matching called covariate-balancing propensity scores, we find that the U.S. Supreme Court is equally likely to review and reverse decisions by judges regardless of their selection or retention methods. These results suggest that state supreme court justices, no matter their paths of getting to (and staying on) their courts, are roughly equal in terms of forward-looking behavior.

Although the U.S. judiciary is designed to be an independent and counter-majoritarian arbiter of the law, many states feature electoral institutions that may expose judges to public pressure. Scholars have demonstrated that judicial elections provide a clear link between public opinion and judicial decision making that may undermine the ability of courts to act in counter-majoritarian ways to protect minority rights. We extend this line of inquiry by examining whether direct democracy institutions have a similar effect of enhancing the impact of public opinion on judicial behavior and reducing the likelihood of judges voting in favor of minority rights. Empirical results from an analysis of gay rights cases in the American states from 1981 to 2004 provide evidence that direct democracy, in conjunction with electoral retention methods, significantly increases the effect of public opinion on judicial decisions.

We contribute to the literature on judicial independence and performance in the states by analyzing opinion clarity. Written opinions are the primary means of communication for state supreme court justices, and clarity is a core component of judicial performance. Using automated text analysis on a sample of state supreme court opinions from all 50 states, we find that variation in judicial retention systems is not associated with substantively meaningful differences in opinion clarity. Furthermore, elected judges do not seem to produce clearer opinions in salient cases notwithstanding the increased public visibility of those decisions. These results suggest that judges tend to conform to prevailing professional norms despite differing institutional pressures.

The opinion-writing process is a vital yet understudied aspect of judicial decision making on state supreme courts. We argue that this process is influenced by the political context and particularly by institutional rules that serve to reactivate and reinforce divisions among justices, leading to less cooperation on the court. We test our theory with original data comprising all education cases decided from 1995 to 2005 in all 50 states and find evidence to support our theory. Specifically, we find that elections lead to fewer unanimous decisions and more separate written opinions, indicating that judicial elections may have a more pervasive effect on the daily work of these courts than previously thought.

Studies of state judicial selection systems require accurate classification of electoral systems. While agreement exists for most states, Ohio and Michigan are difficult to classify. In this paper, we discuss the different practices and explain how, in the absence of candidates' party affiliation on the ballot, elections in these states may justifiably be classified as partisan. Replicating the results of an important study on participation in judicial elections, we show how the treatment of these states may result in differing substantive conclusions. We conclude by urging scholars to provide evidence that their results are robust to alternative classifications.

This study creates and empirically tests an integrated model of trial court decision making to explore the hypothesis that jury verdicts reflect the social, political, and economic attributes of the community in which the court resides. In addition, the analyses examine the influence of attorneys, litigants, case facts, and judges on trial outcomes. Using an original data set comprising all reported civil trial verdicts decided in the state of Alabama from 2002 to 2008, we uncover strong evidence that community composition influences both the dispute resolution and resource allocation functions of trial courts. This research improves our knowledge of trial court decision making and contributes to our theoretical understanding of the effect of extralegal factors on the performance of political institutions.