State Supreme Courts in American Democracy: Probing the Myths of Judicial Reform

Abstract

I address the controversy over how judges should be selected by analyzing the electoral fortunes of incumbents on supreme courts from 1980 through 1995 in the 38 states using elections to staff the bench. Court reformers argue that partisan elections fail to evidence accountability, while nonpartisan and retention elections promote independence. Thus, issue-related or candidate-related forces should not be important in partisan elections, and external political conditions should not be important in nonpartisan and retention elections. Results indicate that reformers underestimated the extent to which partisan elections have a tangible substantive component and overestimated the extent to which nonpartisan and retention races are insulated from partisan politics and other contextual forces. On these two fundamental issues, arguments of reformers fail. Moreover, the extraordinary variations across systems and over time in how well incumbents fare with voters, which bear directly upon the representative nature of elected courts, merit further explanation. for their assistance in collecting portions of the data. All errors are my sole responsibility. 1 States use partisan elections, nonpartisan elections (no party labels in the general election), and the Missouri Plan to select judges. Under the Missouri Plan, nominees for each vacancy are identified by a commission appointed by the governor, who makes the initial appointment from the list provided by the commission. The newly appointed justice immediately assumes office and then appears in the next general election to seek a regular term. Of course, variations from state to state occur with all three methods. 2 I will use "state supreme court" and "court of last resort" interchangeably. 3 Lowry, Alt, and Ferree (1998) provide a recent example of this approach. They define accountability as a relationship between changes in aggregate public revenues and spending, on the one hand, and vote and seat share in state gubernatorial and legislative elections, on the other.

The Judge, the Politician, and the Press: Newspaper Coverage and Criminal Sentencing across Electoral Systems

“…Although the two systems may seem quite different, in practice judges rarely fail in retention elections. Hall (2001); Lim (2013); document that incumbent judges win retention elections more than 99 percent of the time.…”

“…Hall (2001) and Bonneau and Hall (2009) document statistics of various types of judicial elections, such as the defeat rate of incumbents and the average vote share of winners. Several studies also document the empirical relationship between selection systems and court decisions, e.g., Hanssen (1999Hanssen ( , 2000; Huber and Gordon (2004); Gordon and Huber (2007);Lim (2013);and Tabarrok and Helland (1999).…”

Campaign Contributions and Judicial Behavior

“…Party identification has been shown to be a valid measure of ideology on state courts (Pinello 1999). Further, partisan factors have been shown to be significant even in non-partisan elections like Wisconsin's (Hall 2001).…”

“…First, reform advocates claim that elections do not actually promote accountability because the electorate is not well-informed (Dunn 1976). However, Hall (2001) provides evidence to refute this contention. In ________________ a national study of elections to state supreme courts, Hall showed that factors such as candidate ideology and the state's murder rate (a key issue) influence the outcomes of partisan and nonpartisan elections.…”

“…One way in which independence could be compromised is through the influence of partisan pressures. Hall (2001) shows that partisan pressures do influence judicial elections, but she contends that the Missouri Plan also fails to isolate judges from party pressures. She demonstrates that party competition and the party of the challenger (or the party of the governor who would make a new appointment in a retention election) influence the outcome of the election.…”