Money, Politics, and Impartial Justice

By Shepherd, Joanna M. | Duke Law Journal, January 2009 | Go to article overview

Money, Politics, and Impartial Justice


Shepherd, Joanna M., Duke Law Journal


ABSTRACT

A centuries-old controversy asks whether judicial elections are inconsistent with impartial justice. The debate is especially important because more than 90 percent of the United States' judicial business is handled by state courts, and approximately nine in ten of all state court judges face the voters in some type of election. Using a stunning new data set of virtually all state supreme court decisions from 1995 to 1998, this paper provides empirical evidence that elected state supreme court judges routinely adjust their rulings to attract votes and campaign money. I find that judges who must be reelected by Republican voters, especially in partisan elections, tend to decide cases in accord with standard Republican policy: they are more likely to vote for businesses over individuals, for employers in labor disputes, for doctors and hospitals in medical malpractice cases, for businesses in products liability cases and tort cases generally, and against criminals in criminal appeals. Judicial behavior is correspondingly liberal for judges facing reelection by Democrats. Moreover, I find evidence that judges change their rulings when the political preferences of the voters change.

In addition, my analysis finds a strong relationship between campaign contributions and judges' rulings. Contributions from pro-business groups, pro-labor groups, doctor groups, insurance companies, and lawyer groups increase the probability that judges will vote for the litigants favored by those interest groups. The results suggest that recent trends in judicial elections--elections becoming more contested, competitive, and expensive--may have upset the delicate balance between judicial independence and accountability. I discuss various policy solutions for reforming states' systems.

TABLE OF CONTENTS

Introduction
I. The Historical Tension between Judicial Accountability and
      Independence
II. The Threat from State Courts' Increased Politicization
III. Predicted Effects of Increasing Politicization on Judges'
      Decisions
    A. The Increasing Need to Appeal to Constituents
    B. The Increasing Need to Raise Campaign Funds
IV. Empirical Analysis of the Impact of Retention Politics on
      Judges' Voting
    A. The Model's Technical Structure
    B. Details of the Model
       1. Dependent Variable
       2. Retention-Politics Variable
       3. Control Variables
       4. Estimation Method
    C. Primary Empirical Results
    D. Influences on Judges Not Facing Retention
    E. Effect of Changes in Retention Agents' Preferences
V. Empirical Analysis of the Impact of Campaign Contributions
      on Judges' Voting
    A. Empirical Model
    B. Primary Empirical Results
    C. Results for Judges Not Facing Reelection
VI. Proposals for Reform
   A. Permanent Tenure and Maintaining Accountability
   B. Reforming Judicial Elections
   C. Reforming Campaign Finance
Conclusion
Appendix: Full Set of Primary Results

INTRODUCTION

A centuries-old debate asks whether judicial elections are inconsistent with impartial justice. The debate is especially important because more than 90 percent of the United States' judicial business is handled by state courts, (1) and approximately nine in ten of all state court judges face the voters in some type of election. (2) Using a stunning new data set of virtually all state supreme court decisions from 1995 to 1998, this Article provides empirical evidence that elected state supreme court judges routinely adjust their rulings to attract votes and campaign money. The results suggest that recent trends in judicial elections--elections becoming more contested, competitive, and expensive--may have upset the delicate balance between judicial independence and accountability.

For many academics, elite lawyers, and federal judges, it is an assumed truth that judges should be protected completely from public influence. (3) Public pressure on judges to rule a certain way is a menace.

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