Stare Decisisand the Electoral Connection: Do Retention Systems Affect Judges’ Deference to Precedent?

Abstract

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.

An Update to the Squire State Court of Last Resort Professionalization Index

“…The Squire state courts of last resort professionalization index have produced results demonstrating that it has strong predictive validity. It also is routinely entered as a control variable in studies where court professionalization is of secondary interest (e.g., Bosworth 2017; Goelzhauser and Cann 2014; Hughes 2020; Leonard 2016; Leonard and Ross 2014;Miller and Tuma 2020;Randazzo, Waterman, and Fix 2011;Yanus and Gray 2017). Updating the index allows scholars to continue to incorporate it in studies involving state courts.…”