Judicial Elections, Public Opinion, and Decisions on Lower‐Salience Issues

Abstract

Scholarship finds that in states with judicial elections, public opinion affects judges’ decisions on hot‐button campaign issues such as the death penalty or marijuana legalization. Yet the literature leaves open the question of how public opinion affects judicial decisions on less salient issues, which not only dominate the dockets of state supreme courts but also encompass areas of major legal and policy significance. We consider one such issue that infrequently emerges in judicial campaigns, environmental law. Specifically, we collect an original dataset of over 5,000 judicial votes on nearly 1,000 cases heard in 40 state supreme courts from 1990–2014. We find that for the dataset as a whole, there is not a significant effect of public opinion on judicial decisions in any of the major judicial selection systems. However, in the few states in which environmental issues have been the subject of campaign attack ads, we find evidence of such a relationship during the years following the ads. These results contribute to a growing literature that suggests elections can reduce judicial independence from public opinion.

The Electoral Connection in Court: How Sentencing Responds to Voter Preferences

“…First, a judge-in anticipation of changes in the electorate-might always assign more punitive sentences in order to satisfy voters and deter negative media and interest group attention. This would be consistent with existing evidence of judicial accountability, especially in low-information retention elections (e.g., Huber and Gordon 2004;Canes-Wrone et al 2018). Second, judges' policy preferences may be strong enough that sentencing behavior would not systematically vary in response to changes in the electorate.…”

“…(1) selection mechanisms-in terms of, merit selection (e.g., Hall 2001;Goelzhauser 2018), initial election (e.g., Bonneau 2006;Gill and Eugenis 2019), and retention elections (e.g., Hall and Brace 1999;Holmes and Emrey 2006); (2) partisan signals to voters (e.g., Bonneau and Cann 2015;Canes-Wrone, Clark, and Kelly 2014;Badas and Stauffer 2019); and (3) salience of legal policy areas (e.g., Canes-Wrone, Clark, and Semet 2018;Carson et al 2011).…”

When Issue Salience Affects Adjudication: Evidence from Swiss Asylum Appeal Decisions

“…Past work also highlights that judges do not operate in isolation from public life. Shayo and Zussman (2011) show that higher local terrorism intensity in Israel leads to an increase in judicial in-group bias, and a handful of studies indicate that in the long run, judicial decisions reflect public opinion trends (see, e.g., Casillas, Enns, and Wohlfarth 2011;Epstein and Martin 2010), if the issue of decisions is politicized (Blauberger et al 2018;Canes-Wrone, Clark, and Semet 2018). Taken together, there is ample evidence that judicial decision makers might not be outside the realm of public debate, in particular when the topic is politicized and salient.…”

“…One relevant aspect of this insight is that if contextual factors matter for the (political) behavior of ordinary citizens, they might also be consequential for judges. Research on the effect of issue salience on judges' decisions, however, is relatively scant and has only recently received scholarly attention (see Blauberger et al 2018;Canes-Wrone, Clark, and Semet 2018;Epstein et al 2005;Philippe and Ouss 2018;Shayo and Zussman 2011). This article provides empirical evidence that, at least under certain conditions, judges' behavior can be influenced by the public attention devoted to the issue of their cases.…”

“…Research on the effect of issue salience on judges' decisions, however, is relatively scant and has only recently received scholarly attention (see Blauberger et al. 2018; Canes‐Wrone, Clark, and Semet 2018; Epstein et al. 2005; Philippe and Ouss 2018; Shayo and Zussman 2011).…”