The Politicization of State Courts Threatens Fundamental Rights: The Empirical Case

State courts play a vital role in our democracy. The judges who serve on them are called on to enforce fundamental civil and human rights and to adjudicate millions of cases that directly touch people’s lives. Without fair and impartial state courts, the civil and criminal justice systems break down, becoming yet another means for the powerful to impose their will rather than serve as the last refuge of the powerless. However, because almost every state’s system of judicial selection forces judges to engage in elections and other highly politicized processes to achieve and retain their offices, most state court judges today are under terrific pressure to be accountable to politicians rather than the state and federal constitutions and laws.

In recent years, empirical research has shown that these pressures are increasingly distorting the administration of justice and influencing outcomes in ways that put at risk the civil and human rights. These studies show that criminal defendants, voters, and LGBTQ people are all at risk of being deprived of their rights. In an environment in which fundamental rights may be imperiled in an unprecedented fashion, advocates for vulnerable communities should be prepared to defend the impartiality of state courts with even greater resolution.

The Role of State Courts in Protecting Fundamental Rights

Though many Americans think of federal courts, and the U.S. Supreme Court in particular, as the primary source for establishing what the law means, in fact, for most Americans, state courts are “the law” because they handle over 90 percent of the nation’s judicial business. Although the federal courts take on the biggest cases and those with the broadest policy implications, very few people will ever enter a federal courtroom as a party or interact with a federal judge. The sheer numbers are telling. The U.S. Supreme Court decides fewer than 100 cases each year, while approximately 100 million cases are filed in state trial courts annually. Most of these cases have a direct and often profound effect on the lives of ordinary people: divorce, child custody, landlord-tenant, auto accidents and other torts, and the overwhelming majority of criminal prosecutions.

As important as these cases are, state courts also decide cases with major policy implications with respect to civil and human rights. American democracy is framed not by one constitution, but rather 51 foundational documents. Here again, the state courts do the bulk of the work, deciding about 2,000 constitutional cases each year, while the U.S. Supreme Court decides approximately 30. State constitutional cases are especially important because state courts have often looked to their constitutions to expand rights beyond those identified by the U.S. Supreme Court.

State supreme courts have decided landmark cases involving reproductive freedom, LGBTQ equality, environmental justice, voting rights, and criminal justice. But the large role that state courts play in protecting fundamental rights ensures that powerful forces which take a different view on these issues will attempt to undermine impartial courts capable of protecting minority rights in the face of short-term political opposition.

The Rising Tide of Money and Politics

Over the past 20 years, money and politics have come to play an increasing large and troubling role in state judicial elections. States use four different systems of judicial selection and retention:

• partisan elections;
• nonpartisan elections;
• gubernatorial appointments; and
• merit plans.

State Court Judicial Selection Methods

In almost every state, the process by which judges are selected and retained in office exposes them to political pressures. Even when judges are selected by appointment or merit-based plans, they typically face “retention” elections in which incumbent judges run unopposed and must win majority approval to retain office. Only three states grant their supreme court justices permanent tenure without re-election or reappointment by the political branches as a condition to remaining in office (Figure 1). As a result, most state court judges must please some combination of voters and politicians who will determine whether they keep their judicial seats.

Before the 1990s, political attacks on state court judges were rare. Those that did occur, such as those on California Supreme Court Chief Justice Rose Bird and Associate Justices Cruz Reynoso and Joseph Grodin in 1986 or Tennessee Supreme Court Justice Penny White in 1996, were notable precisely because they were not the norm. State court judges, even high-profile justices on the high courts of major states, were mostly left alone to do their work and did not have to function as politicians. This is no longer the case. Spending in state supreme court elections, both by candidates and outside groups, has exploded (Figure 2a).

Candidate Fundraising by Decade

Interestingly, it was two U.S. Supreme Court cases that played an important role in opening the floodgates. Most significantly, in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), the Court struck down bans on corporate and union independent expenditures. As large as Citizens United’s impact has been in federal elections, it has utterly transformed those for state courts. In Republican Party of Minnesota v. White, 536 U.S. 765 (2002), the Court had earlier greatly widened the scope of political activity by judges by holding that the First Amendment prohibits rules barring judicial candidates from announcing their positions on legal and policy issues. Taken together, the two decisions remade the environment in which judicial elections are conducted and increased the amounts of money and degree of politics that define them (Figure 2b).

Case Studies: The New Politics of Judicial Selection

Big-money judicial elections characterized by contentious politics and numerous television attack ads have played out across the country over the past five years.

North Carolina: "Sided with the Predators"

The 2014 nonpartisan primary involving incumbent Justice Robin Hudson featured a slashing television attack ad paid for by an independent special interest group called “Justice for NC,” which was in turn largely financed by a $650,000 contribution from the Republican State Leadership Committee. The ad was based on Justice Hudson’s opinion in a case involving whether a subsequent legislative enactment requiring those convicted of sexual assault to wear electronic monitoring devices after being released from prison violated the Ex Post Facto clause of the U.S. Constitution. The ad ignored the complicated and important legal issues at stake in the case and simply asserted that “Supreme Court Justice Robin Hudson sided with the predators.” Although Justice Hudson prevailed in the primary and subsequent general election, both elections were close. No observer could avoid the conclusion that by writing an opinion which resolved a complex issue in favor of a criminal defendant, she had placed her career at risk.

Wisconsin: "David Prosser In Trouble"

In 2011, as supporters of conservative Wisconsin Governor Scott Walker surveyed the political battlefield that the state had become, they realized that a new front was about to open up. Justice David Prosser, also a conservative, was about to run for re-election, and if he lost, the Wisconsin Supreme Court, which had just two years early flipped to a 5–4 conservative majority, would flip back, with potentially serious consequences for Governor Walker’s agenda and political ambitions. Walker’s network of campaign operatives and donors swung into action, including one activist who emailed a group of potential donors that “David Prosser is in trouble. And if we lose him, the Walker agenda is toast.”

As a result of Citizens United, the network of independent lobbying groups assembled $3.5 million of undisclosed corporate donations (under state law, Justice Prosser’s campaign was allowed to raise and spend only $400,000). A recent exposé by The Guardian, based on previously secret documents, set out in detail the Walker network’s efforts on Prosser’s behalf. Prosser won a narrow victory, and in 2015 joined the majority in a 4–3 decision to terminate a criminal investigation into whether Governor Walker’s campaign finance network violated state campaign finance laws.

Iowa: "Robed Masters and Judicial Activists Imposing Their Will on the Rest of Us"

In 2009, the Iowa Supreme Court held that the state’s ban on same-sex marriage violated the Equal Protection Clause of the Iowa Constitution, Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). Although the decision was unanimous and the court included justices appointed by both Democratic and Republic governors, the justices were soon the targets of political attacks. Three of the court’s justices were scheduled to come before the voters in retention elections in 2010. Out-of-state antigay activist groups spent more than $1 million on a campaign attacking the justices for the Varnum decision. One such activist described the justices as “robed masters and judicial activists imposing their will on the rest of us.”

The three justices seeking to be retained in office were defeated in the 2010 election. Another justice from the court that decided Varnum was retained in 2012, and three additional justices from that court came before voters in 2016.

Money and Politics Threaten Fundamental Rights: The Empirical Evidence

In recent years, scholars examining the role of money and politics in state court judicial elections have gathered data and conducted empirical studies demonstrating that these forces are influencing the administration of justice in ways that should be of great concern to anyone who cares about civil and human rights.

Criminal Justice

Do the sort of “soft on crime” attack ads used to target Justice Hudson in North Carolina influence how judges rule in cases involving serious violent crime, the very sort of cases where a decision in favor of a defendant might form the basis for such a campaign ad? One recent study showed that they do. It found that the more TV ads aired during state supreme court judicial elections in a state, the less likely justices are to vote in favor of criminal defendants. As the number of airings increases, the marginal effect of an increase in TV ads grows. In a state with 10,000 ads, a doubling of airings is associated on average with an 8 percent increase in justices’ voting against a criminal defendant’s appeal.

The study also found that justices in states whose bans on corporate and union spending on elections were struck down by Citizens United were less likely to vote in favor of criminal defendants than they were before the decision. Citizens United changed campaign finance most significantly in 23 of the states where there were prohibitions on corporate and union electioneering prior to the decision. In these states, the removal of those prohibitions after Citizens United is associated with, on average, a 7 percent decrease in justices’ voting in favor of criminal defendants.

To learn more about the study, which was based on data collected by independent researchers at Emory University School of Law working under the supervision of Professors Joanna Shepherd and Michael Kang with support from the American Constitution Society (ACS), visit www.skewedjustice.org.

Democracy

One might also ask whether the political and campaign finance pressures state court judges increasingly face are affecting their decisions in cases involving elections. Here again, a recent study marshals evidence that they are. The study found that judicial partisanship in election cases increases, and elected judges become more likely to favor their own party, as party campaign-finance contributions increase. The analysis also showed that Republican judges systematically favor their own party in election cases by a statistically significantly greater margin than do Democratic judges.

This partisan favoritism by Republican judges is not dependent on selection method, thus buttressing the case that all selection methods encourage judges to curry favor with whomever controls their retention, whether it is the electorate or partisan officeholders. The researchers argue that the Republican Party’s system of campaign finance networks (such as those discussed above in connection with Justice Prosser’s campaign) may explain why judges affiliated with the party are more responsive to partisan incentives and thus more likely to favor the party in their decisions, because campaign contributions bear a greater relationship with partisan loyalty for Republican elected judges in these cases than for Democrats.

Tellingly, the study also found that this powerful influence of campaign money largely disappears for lame-duck judges without re-election to worry about. The study also was conducted by Professors Kang and Shepherd with support from ACS, and can be viewed at www.partisanjustice.org.

LGBTQ Rights

While state constitutions give state courts broad scope to protect civil and human rights, whether state court judges will do so depends to a considerable degree on the extent to which they are exposed to pressure from political forces, as was the case in Iowa following the Varnum decision. Courts dominated by political majorities will struggle to fulfill a counter-majoritarian function.

A recent study of decisions in cases involving the rights of LGBTQ people concludes that judicial elections may undermine state courts’ role in protecting these rights. The study examined all cases involving LGBTQ issues decided by state supreme courts starting in 2003, after the U.S. Supreme Court handed down its ruling in Lawrence v. Texas, through 2015, including constitutional challenges to statutes that barred legal recognition of the relationships of same-sex couples, other family law issues affecting samesex couples, and litigation by transgender plaintiffs challenging restroom restrictions or issues related to gender on driver’s licenses. It found that state supreme courts whose judges stand for election are less supportive of LGBTQ rights claims than judges selected by other methods, probably because ideological factors play a larger role in shaping judges’ decisions on these courts.

The report, Justice Out of Balance, can be found at lambdalegal.org.

Judicial Diversity

A fourth recent study examined how the current system of judicial selection has shaped the courts themselves, and found an appalling lack of racial and gender diversity among the nation’s state court judges. The study is based on biographical data on more than 10,000 current sitting judges on state courts of general jurisdiction in all 50 states. In many states this sort of data is nonpublic and in some instances not even systematically collected. The data showed that America’s state courts are not representative of the public they serve. White men are strongly overrepresented on the state court bench, while women and especially women of color are underrepresented.

White Men Are Disproportionately Represented on the State Court Bench

This lack of diversity threatens to undermine public confidence in the courts and has profound implications for the state courts ability to protect civil and human rights.

The study, including state-by-state breakdowns on the composition of the courts, may be found at www.gavelgap.org. It was authored by Professors Tracey George of Vanderbilt University School of Law and Albert Yoon of the University of Toronto School of Law.

Conclusion

The methods by which state court judges are selected and retained can have profound consequences for civil and human rights. Those dedicated to advocating for these rights would be advised to engage on the judicial selection issue, least a failure to do so undermine their other efforts. This is especially true at a time when federal agencies may be indifferent or overtly hostile to the protection of civil and human rights.

David Lyle is the director of the state courts project at the American Constitution Society.