State courts handle the preponderance of legal disputes in America. Federal courts have increasingly deferred to states to demarcate the scope of foundational rights, and decisions by these courts have substantial impact on how Americans order their affairs—from reproductive decisions to where to start a business.
The growing practical significance of state courts will inevitably result in the public becoming more attentive to who sits on these courts, how they reach their decisions, and whether they produce legal stability and predictability—key aspects of the rule of law. If judges become nothing more than agents of a public that swings from one policy preference to another, then those key aspects may no longer define our most ubiquitous and, increasingly, impactful state courts.
Judicial elections enable the sort of judicial activism bemoaned by Democrats, Republicans, and, generally, defenders of an independent and impartial judiciary. The continued increase in the competitiveness of these elections will only exacerbate the problem—the rule of layperson may soon replace the rule of law. Though judicial elections only occur in state courts, any lessening of the rule of law can have a negative effect on the other institutions, norms, and rules that rely on the reality and, importantly, perception of the predictable and neutral application of the law.
Assuming the worst-case scenario—that judicial elections soon become truly indistinguishable from races for political offices and that judges perceive themselves as politicians in robes—then it still may take some time before the partisan pull on state courts results in severe damage to the rule of law. Most Americans cannot identify the chief justice of their respective state supreme court, and more than half have no idea their state even has a constitution. This lack of familiarity provides reformers with time to shore up state courts before people realize the extent to which these courts have drifted from even feigning to serve as independent and impartial adjudicators.
It’s true that the transformation of judicial elections into a traditional election has produced some benefits: namely, accountability. Whereas the nomination and confirmation process used to select some state court judges permits a candidate to say one thing during their hearings and do another when on the bench without any chance of being removed, an election allows voters to toss out such a candidate. However, this kind of accountability comes at the price of impartiality and independence—two critical factors to the rule of law. The prioritization of accountability has case-specific as well as general effects. Consider that judges, likely in recognition of voter opposition to “soft on crime” officials, sentence convicted defendants to longer sentences the closer they are to reelection. This sort of bias can appear throughout a judge’s term as well: The greater the public’s support of capital punishment, the more likely judges are to affirm capital sentences.
If judges become beholden to the will of the voters on more issues, then the law will no longer be perceived as stable or predictable. Instead, those relying on the protections of the law, including members of vulnerable communities and those with commercial interest, will have to simply hope that the majority of people continue to support the laws upon which they order their affairs. In other words, when accountability becomes the orienting principle of judicial selection, the whim of the people plays a disproportionate role in the interpretation and application of the law—a role incongruous with the fundamentals of the rule of law. Doubts surrounding the rule of law may also have significant downstream effects on anything and everything that relies on the stable and predictable application of the law, including, but not limited to, commercial activity and political stability.
Judicial Elections and Independent State Courts
Nearly 90 percent of state court judges face some sort of election. The majority of states subject judges to partisan or nonpartisan elections, whereas a select few rely on retention elections (which, in practice, do not provide a check on the incumbent given a near 100 percent retention rate), merit plans, or appointments to select their jurists. And, just as political parties interpret even the smallest of electoral victories as a mandate to impose a sweeping set of policies on the entire electorate, judges who obtain their seat via election understandably presume that the public has signed off on their substantive positions and jurisprudence. (For more on this, see Chambers v. Florida (1940)—Justice Black wrote that, when judges depend on voter approval, courts cannot perform one of their most important constitutional roles—serving as “havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are … victims of prejudice and public excitement.”)
When judicial elections were originally adopted by states in the mid-19th century, proponents intended them to align with and further the judiciary’s pivotal and distinct role within our system of government. According to Kermit Hall, the reformers who championed the popular election of judges hoped to “curtail partisan domination of judicial patronage, and to restore separation of powers by curbing legislative excesses.” However, as noted by David Pozen, then-special assistant to Sen. Edward Kennedy, it was foolish to ever think that voters could, on the one hand, vote for legislative and executive candidates based on party affiliation, policy stances, and things like affability, and then switch to the judicial races and vote solely based on the candidate’s qualifications with respect to impartially and independently interpreting the law.
Whereas judicial elections used to be “sleepy” affairs, that’s no longer the case in the wake of the removal of a major check on the partisan nature and substance of judicial campaigns. Since Republican Party of Minnesota v. White, a case in which the U.S. Supreme Court significantly limited restrictions on what judicial candidates could say with respect to their stances on certain issues, judicial elections no longer serve as a means for the people to vet the qualifications of their judges but instead allow citizens to vote for “judicial platforms more so than on the basis of a candidate’s ability to impartially apply the law.” Under such circumstances, it is understandable that winning candidates feel compelled to fulfill their campaign promises by adjudicating in line with their advertised stances, rather than by advancing the conclusion compelled by the law.
Electorally empowered, so-called activist jurists will become more common in the years ahead. As pointed out in a 2008 article by Pozen, the “improvement” of judicial elections—from once boring, uncontested affairs to competitive battles with the features of legislative and executive races—will only grant further legitimacy to judges interpreting cases through the lens of their supporters.
During the era of “sleepy” judicial elections, when a dearth of information, candidates, and media coverage defined judicial elections, winning candidates had little reason to think the public provided them with any jurisprudential guidance. Voters had little information on the “platforms” of judicial candidates, many races were uncontested, and the media generally focused on legislative and executive races. As a result, successful candidates did not have as much reason to believe they had been elected on some kind of mandate. However, given the rapid increase in voter attention to judicial elections—not to mention the attention paid by political parties, special interests, and potential parties before the court in question—judges now have a stronger basis for arguing that the public has vetted and demanded certain interpretations and outcomes.
The internal contradiction that undermines the possibility of judicial elections serving their intended purpose has become clearer and more consequential as our politics have collided with aging and often-outdated state constitutions. Given that social issues such as same-sex marriage, drug use, and education have become a larger and larger part of state court dockets and partisanship has found its way into state judicial elections, it seems less and less likely that voters can bifurcate their voting approach with respect to “political” candidates from their approach to judicial candidates.
The days of judicial candidates winning based on the prestigiousness of their credentials and caliber of their legal careers are long gone. Voters and campaign donors will sooner flock to the candidate with questionable legal chops who indicates a favorable stance on an issue of the day than to the top-of-the-class, former-judicial-clerk, experienced litigator who refrains from stating their views but pledges to neutrally interpret the state’s constitution.
The aforementioned legal changes and shifts in electoral discourse have diminished the legitimacy of state courts in the minds of voters. By way of example, both among legal scholars and politically engaged partisans, the idea of judicial review or, at a minimum, the supremacy of the judiciary’s interpretation of the law, has been thrown into a question. Harkening back to Jacksonian-era arguments that the people as sovereigns can offer the authoritative interpretation of the law, advocates of popular constitutionalism and related theories have started to question whether courts really ought to “say what the law is” or should instead merely restate the people’s preferred interpretation of the law.
This analysis helps make clear why the U.S. stands alone when it comes to electing judges: Other countries have recognized that elections force judges to surrender their independence and impartiality for votes and campaign donations. Alternative means of selecting judges, such as through merit plans or appointments by legislative or executive officials, are far from perfect but do a better job of safeguarding the role of the judicial branch—specifically, serving as a check on majoritarian pressures and upholding the predictability and stability that defines the rule of law.
The Pressing Need to Mitigate the Worst Effects of Judicial Elections
As the issues associated with judicial elections have become clearer, so has the power of state courts—making reform all the more necessary. A single political party controls both legislative chambers and holds the governor’s office in 37 states. Absent a judiciary that feels beholden to the law, rather than fearful of the same voters who ushered in those political actors, members of discrete and insular minorities in those states may have few means to thwart aggressive, punitive, and, potentially, unconstitutional state government action. That possibility should scare all defenders of the rule of law in a pluralistic society.
In other countries, threats to judicial independence have raised red flags—resulting in clarion calls for reforms that uphold the judiciary’s ability to impartially adjudicate the law. For example, as covered by Sabrina McCubbin, when legislative action in Poland threatened to place the courts in control of the ruling political party in 2017, the European Commission took immediate action to try to counter those acts and protect the rule of law. Democracies around the world acknowledge that the overlap of political aims with judicial interpretation is cause for concern.
Judicial elections raise such concerns here in the United States. Those concerns have gone unheeded for too long. Now is the time to talk openly and honestly about the threat of “quality” judicial elections to the “quality” of the rule of law. Come 2024, 77 of the 344 seats on state supreme courts will be up for election—including six seats in Texas, a seat in North Carolina, and a seat in Florida. These elections represent opportunities to reframe our conception of the purpose of electing judges—are the people dictating their policy preferences or serving as a quality check?
If the former is the answer, then the independence and impartiality of state courts will continue to wane and members of contemporaneously and historically persecuted communities should be on notice.
The National Security Implications of the Rule of Law
Threats to the rule of law deserve immediate attention and a substantial response. Mazarr’s recent report for RAND studied the rise and fall of hegemonic powers and discovered that these powers relied on the rule of law to cultivate an entrepreneurial mindset and to mitigate the costs posed by political instability and violence.
The United States may not be able to rely on the private sector to produce technology that improves America’s defense posture if companies come to doubt the existence of the rule of law. As Adam Segal summarized in Lawfare, the Department of Defense has a keen interest in technology exchanges with innovators in Silicon Valley. Segal noted that one of the best ways to shore up the nation’s cybersecurity posture is to maintain the relationships between the Bay and the Swamp. If American courts no longer seem capable of fairly resolving contract disputes—for example, by favoring in-state over out-of-state litigants—then these innovators may hesitate before contracting with certain entities, sharing technology and information with the government, and the like. Consequently, innovative companies may uproot and settle abroad. This outcome would hinder the country’s ability to stave off cyberattacks as well as to anticipate, defend against, and respond to other novel and significant threats.
Given the numerous and substantial positive effects of the rule of law on business and innovation, the possibility of businesses reducing their government ties and U.S. headquarters should not be dismissed. The rule of law decreases transaction costs, improves contract enforcement, and diminishes fears of costly disruptions to business—such as domestic unrest and lawlessness. All else equal, companies would understandably prefer to invest where courts have earned the trust of private and public stakeholders and where few doubt the rule of law.
Bad actors seeking to undo the rule of law and the societal factors that sustain it further reveal the ties between national security and clear laws, fair courts, and unbiased enforcement. As conveyed by a recent Department of Homeland Security report, Russia has supported efforts to “undermine trust in Western democratic institutions.” The destabilizing effects of these interventions provide clear benefits to Putin and other adversaries—a fragmented and disjointed American public will decrease the nation’s ability to collectively respond in defense of its allies.
Imagine, for instance, if Putin or another adversary capitalized on current popular concerns about the legitimacy of the U.S. Supreme Court by fomenting public opposition to a core part of the National Security Agency’s (NSA’s) intelligence gathering—the constitutionality of which has been challenged in a case before the Court. That case, Wikimedia v. NSA, involves the agency’s “Upstream” surveillance program. According to the Knight Institute, one of the plaintiffs challenging the surveillance, Upstream involves the interception of international communications of Americans at “Internet chokepoints” followed by analysis of those communications for associations with the targets of foreign surveillance. A ruling against the NSA would likely limit the scope and scale of surveillance conducted under the auspices of the Foreign Intelligence Surveillance Act.
On the merits, the program may indeed be unconstitutional——what matters for the sake of this article is that a diminished belief in the rule of law among the public could be exploited by foreign targets to pressure the Court into siding one way or the other. Comparatively, if the rule of law were robust and courts from the U.S. Supreme Court on down had the trust of the public, these sorts of disputes may center more on the actual law and facts at stake rather than the will of adversaries and fears of the public.
Possible Solutions to Judicial Elections
Despite the issues associated with judicial elections, however, few suspect that voters will soon agree to cede their power over the judicial branch and instead select judges based on a merit plan or legislative or executive appointment. It follows that those concerned with “activist jurists” ought to think about alternative ways to increase the odds of selecting and retaining neutral, impartial, and independent candidates.
Pozen offers a few obvious alternatives: Reformers could push for contribution limits in judicial elections, lobby to end the common practice of judges deciding whether or not they need to disqualify themselves from a case, and advocate for increased transparency in the courtroom—such as mandating that oral argument be livestreamed.
A less obvious alternative would be for state supreme courts to issue only per curiam or anonymous opinions. In the late 18th and early 19th centuries, the U.S. Supreme Court as well as state courts of last resort refrained from issuing opinions attributable to any one justice—instead, the sole opinion offered was that “of the court.” Not until the 1930s—around the time President Franklin D. Roosevelt was contemplating drastic alterations to the composition of the U.S. Supreme Court—did it become particularly common for individual justices to offer concurrences and dissents with the intent of expressing their personal response to the majority’s opinion.
Since then, justices, at least on the U.S. Supreme Court, have adopted “writing separately” as a way to protect their personal reputation. With respect to the U.S. Supreme Court, this practice has some bases of justification, including, but not limited to, the nature of justices’ appointments (nominated by the president, confirmed by the Senate) and the length of their tenure (lifelong), affording the jurisprudence of each justice some degree of importance.
However, given that it’s usually only repeat litigators and special interests who have any idea of who sits on state supreme courts, the value of justices “writing separately” is greatly diminished. In fact, when state courts issue several opinions, they reduce the public’s ability to definitively “know what the law is.” And, given that only 22 percent of state supreme court decisions include a dissent, the practical need for identifying the position of each justice is minimal. Comparatively, per curiam opinions, by virtue of their anonymity, allow justices to focus on the proper legal answer rather than the politically powerful one.
Because state constitutions generally omit any specific directions for how courts must publish their opinions, this means of mitigating the worst incentives created by judicial elections could be implemented tomorrow. It seems unlikely that justices—accustomed to using concurrences and dissents as means to leave their stamp on the law—will be the ones to propose this without public pressure. And some members of the public similarly oppose this change. They may fear, for instance, that justices will use anonymity to issue opinions grounded in anything but legal reasoning. However, come election time, those justices would face the wrath of the electorate. Per curiam opinions would turn elections into referendums on the entire court by preventing individual justices from disclaiming responsibility for any acts of judicial recklessness. As a result, state courts would have an incentive to write opinions in line with the people’s desire for “evenhanded justice.”
Absent these solutions, judicial elections may continue to erode the rule of law by inviting skepticism of the impartiality and independence of decisions by state courts. This skepticism may spill over into how the public perceives other institutions, such as other courts and government agencies generally. The results of such a spread may have greater consequences than most would anticipate.
Judicial Elections Really Are This Serious
The rule of law depends on millions of Americans trusting institutions at every level of government. When that trust has started to wane, the public has responded by creating new checks and balances to squash corruption and crush partisanship. The election of state court judges was one such response: To maintain the independence of judges, voters in several states cut parties and special interests out of the judicial selection process. Decades later, those elections are now a source of destabilization.
Elected judges favor their donors. Elected judges cannot pretend to be independent one day and the next turn a blind eye to partisan cheerleaders touting the judge’s policy stances. Elected judges are simply incompatible with maintaining the legitimacy of a judicial branch intended to act impartially and independently.
The destabilizing effects of opinions rendered by elected judges will only increase as state courts assume greater authority over fundamental rights. Now is the time to seriously consider new selection processes, laws, and norms intended to ensure judges fulfill their critical role in maintaining the rule of law. Absent such consideration and subsequent action, there’s no telling what may happen. However, if history serves as any indication, then even a small decrease in the rule of law may have serious consequences with respect to innovation that undergirds national security and lawlessness that renders the nation less able to respond to bad actors.
Alfred P. Carlton Jr., who served as the president of the American Bar Association, offered a pithy summation on the dangerous path marked by the devolution of courts of law into courts of public opinion:
If the public ever perceives that the court bases its decisions on factors other than the evidence, the laws, and the Constitution, it will lose its respect for the law. And when the public loses its respect for the law, we lose the centripetal force that binds us to our nationhood.
As Carlton made clear, I was not the first to realize the democratic and national security risks posed by judicial elections—and, hopefully sooner rather than later, I will not be the last