Economic Crisis and the Rise of Judicial Elections and Judicial Review

By Shugerman, Jed Handelsman | Harvard Law Review, March 2010 | Go to article overview

Economic Crisis and the Rise of Judicial Elections and Judicial Review


Shugerman, Jed Handelsman, Harvard Law Review


TABLE OF CONTENTS

INTRODUCTION                                                      1063

I.   WEAKNESS AND PANIC                                           1070

     A. Weakening the Courts and Shortening Tenure, 1800-1832     1070

     B. Panic: Legislative Excess and Financial Disaster          1076

II.  THE TRIGGER: NEW YORK'S ADOPTION OF JUDICIAL ELECTIONS IN    1080
     1846

     A. An Unlikely Alliance: Radicals and Whigs                  1080

     B. Empowering the Courts                                     1088

     C. New York as Trigger                                       1092

III. THE WAVE OF JUDICIAL ELECTIONS, 1846-1851                    1093

     A. The American Revolutions of 1848                          1093

     B. The Purpose of More Judicial Review and More Judicial     1097
        Power

     C. Strong Parties, Strong Courts, Strong Constitutions       1105

     D. Addressing Other Historical Interpretations               1107

        1. Separating Law and Politics                            1107

        2. A Trend Toward Limiting Judges and Empowering Juries?  1110

        3. A Lawyers' Professional Agenda?                        1111

IV.  A BOOM IN JUDICIAL REVIEW                                    1115

     A. Elected Judges: From Design to Practice                   1115

     B. Democracy and Counterdemocracy: A Puzzle                  1124

     C. Explanations for the Role of Judicial Elections in

        the Rise of Countermajoritarian Theory                    1132

        1. Judicial Elections and Faction                         1132

        2. Judicial Elections and Districts                       1138

        3. Other Influences of Judicial Elections                 1139

        4. Explanations Separate from Judicial Elections          1141

CONCLUSION: DEMOCRACY, ECONOMY, AND JUDICIAL INDEPENDENCE         1142

APPENDIX A: JUDICIAL ELECTIONS TIMELINE                           1146

APPENDIX B.1: STATE SUPREME COURT CASES DECLARING

   STATE LAWS UNCONSTITUTIONAL                                    1147

APPENDIX B.2: TOTAL REPORTED CASES BY DECADE (ON WESTLAW AND      1148
LEXIS)

APPENDIX C: STATE JUDICIAL REVIEW, 1780-1864                      1149

APPENDIX D: SUBJECT MATTER OF STATE SUPREME COURT

   CASES OF JUDICIAL REVIEW                                       1150

INTRODUCTION

Almost ninety percent of state judges face some kind of popular election. (1) Thirty-eight states put all of their judges up before the A voters. (2) Judicial elections are uniquely American: even though many countries have copied other American legal institutions, almost no one else in the world has ever experimented with the popular election of judges. (3)

Today, judicial elections weaken state courts and reduce their willingness to defend the rule of law against public opposition or special interests. Recent studies demonstrate that elected judges face more political pressure and reach legal results more in keeping with local public opinion than appointed judges do. (4) Other studies have found that elected judges disproportionately rule in favor of their campaign contributors. (5) It has been a long-established practice for parties and lawyers to donate to the judges who will later hear their cases, but recently the size of such donations has increased dramatically. (6) Spending on judicial campaigns has doubled in the past decade, exceeding $200 million in total direct donations from 1999 to 2008. (7) In June 2009, the U.S. Supreme Court ruled for the first time that an elected judge must recuse himself from a case involving a major campaign contributor. (8) In that case, a coal company CEO who was appealing a $50 million verdict spent $3 million on the campaign of a challenger for a seat on the West Virginia Supreme Court, (9) financing political attack ads alleging that the incumbent was soft on child molesters. …

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