Author: Jared Mayer, Johns Hopkins University
An election post-Citizens United would not be complete without somebody, somewhere, decrying the nearly unlimited expenditures used in the various campaigns. What struck me as surprising, however, was that, according to both The Atlantic as well as The New York Times, campaign expenditures for state Supreme Court elections have sharply increased. They also reported that such donations made it hard, if not impossible, for the justices to be “impartial”. In addition, Professor Joanna Shepherd of Emory Law School found a negative correlation between the number of attack ads and the likelihood of a justice voting in favor of a criminal defendant.
Granted, granted, and granted. All of these effects do indeed skew the judiciary and, in my view, quite obviously prevent impartiality. But both The Atlantic and The New York Times missed the mark. The real culprit here is not the money, but the fact that the people are electing judges. It’s this fundamental policy that is bound to cause the judiciary to listen to the people, and hence, negate its very duty to be impartial. To be sure, voting is a fundamental right that many Americans – myself included – cherish and staunchly protect. And they do so because it plays a key role in maintaining the American system of self-governance. But equally important to the American system of self-governance is that the judiciary need not respond to the whims of the people. In order for the judiciary to play its rightful role in the American system of self-governance, it needs to remove itself from the whims of the people, and consequently from public elections.
Public elections for state Supreme Court members occur in 22 states, 15 of which hold “non-partisan” elections. And, no doubt, this has been a long-standing practice in the United States. In fact, the first state to mandate popular elections for all judges was Mississippi in 1832 and many states adopted, and later rejected, the popular election of judges. While many theories as to why popular elections for judges were rejected, I think it stems from a paradox – one that continues to hold true today.
The popular vote is the culmination of parties fighting for political control. We will all concede that a democratic republic – a government in which the people can choose their representatives in government – is one that is based on political control. It is the battle over which party’s ideas are to be implemented by the government. If this is the case, then the popular vote for the courts fundamentally undermines the courts’ impartiality. For what is there to be impartial about when your rulings are used against you in the next election? Hence, it is this paradox – voting for a judiciary that ought to not care about votes – that makes this process nonsensical.
Yet proponents of popularly elected judiciaries can argue that the people will vote with the intent of having an impartial judiciary. Aside from the fact that Professor Shepherd’s research dismisses that claim, the people themselves have chosen various parties to run their governments. Why do we assume that the same line of reasoning, the same obsession with politics and not law, will not drive the people when they vote for judges? Are we so confident in their desire for an impartial judiciary as opposed to one that grants them what they want?
While proponents of public elections for judges might argue that low voter turn out makes this less of a problem, it ignores the key issue at hand. No matter how many or how few voters turn out to vote, the judiciary will have to campaign in order to appease the voters. And as was seen in North Carolina, judges had to run on a campaign that promised voters that they were not “soft on crime.” The problem here is not how many people will decide what positions the judiciary should take, but rather the people – be they five or five million – will decide which positions the judiciary should take.
Sure, these problems seem to plague partisan elections; but one must not be deceived into ignoring what just lies behind a “non-partisan” election. Parties will always endorse candidates that will enact their policy preferences – a factor absent in “non-partisan” elections. Yet as both The Atlantic and the New York Times pointed out, the most contentious judicial election occurred in North Carolina, a state in which there are only “non-partisan” judicial elections.
I propose that states should adopt the executive appointment system used by the Federal government and ten other states. It aims towards a judiciary that is not swayed by any person, be it a common voter or the Governor of a state – something that can hopefully create an impartial judiciary. Of course, one can easily retort by raising issues with an executive appointment system. In fact, many states that had a popular election for judges bemoaned that the executive appointment system allows the judges to rule in cases, many of which having large public policy repercussions, without having to be responsible for the effects of those rulings. While these are valid objections, they in no way mitigate the harmful effects that popular elections have on the impartiality, as well as the independence, of the courts. Yes, courts do rule on issues that can significantly change public policy. But the very goal of the courts is not to look at their cases as “public policy” but rather as matters of law. That is the very goal of an impartial judiciary. The other branches of government, the executive and the legislative, as well as the people themselves are responsible for responding to the court’s decisions if they decide that the court’s interpretation of a statute or of a constitutional provision has a pernicious effect. And while this process may be beleaguering, it is far better than simply surrendering the courts to the whims, not to mention the impartial preferences, of the people.
Justice Horace Gray of the United States Supreme Court once wrote, “it behooves the court to be careful that it does not undertake to pass upon political questions, the final decision of which has been committed by the constitution to the other departments of the government.” Of course, it’s extremely tempting to blame judicial impartiality on the vice of money. And it’s equally tempting, as well as noble, to shield public elections from any form of attack or usurpation. But both public elections and money have a place elsewhere. If we truly aspire to have impartial judiciaries, then we must protect our judiciaries even from the people themselves.