Judicial Independence on Unelected State Supreme Courts

Abstract

The state supreme court literature often overlooks the 12 states that use traditional appointment systems or fails to explore differences in their judicial designs. Eight states require justices to be reappointed at the end of a fixed term, while a different set of eight states currently use judicial commissions to limit the discretion of partisan elites to appoint judges. I develop a principal-agent theory of judicial independence to test how unelected judges under different institutional arrangements respond to elite preferences. An analysis of business cases from 1995-2010 indicates justices selected by judicial commissions are significantly less sensitive to elite ideology than justices nominated by partisan elites. The most responsive behavior occurs among justices subject to periodic reappointment who are chosen by partisan elites, while tenured judges chosen by judicial commissions behave independently of elite ideology. The data also provide evidence that state tort reforms significantly increase the probability of pro-business votes.

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