State Supreme Courts in American Democracy: Probing the Myths of Judicial Reform

TLDR

Court reformers claim partisan elections lack accountability and that nonpartisan and retention elections promote independence, arguing that issue‑ or candidate‑related forces and external political conditions should be irrelevant in these electoral systems. The study examines how incumbent supreme court judges fare in elections from 1980 to 1995 across 38 states to address the controversy over judge selection. The authors analyze election data on incumbent supreme court judges from 1980 to 1995 across 38 states. Results show that partisan elections have a substantive component and that nonpartisan and retention races are not insulated from partisan politics, contradicting reformers' arguments, and that large variations in incumbent electoral success across systems and time warrant further study.

Abstract

I address the controversy over how judges should be selected by analyzing the electoral fortunes of incumbents on supreme courts from 1980 through 1995 in the 38 states using elections to staff the bench. Court reformers argue that partisan elections fail to evidence accountability, while nonpartisan and retention elections promote independence. Thus, issue-related or candidate-related forces should not be important in partisan elections, and external political conditions should not be important in nonpartisan and retention elections. Results indicate that reformers underestimated the extent to which partisan elections have a tangible substantive component and overestimated the extent to which nonpartisan and retention races are insulated from partisan politics and other contextual forces. On these two fundamental issues, arguments of reformers fail. Moreover, the extraordinary variations across systems and over time in how well incumbents fare with voters, which bear directly upon the representative nature of elected courts, merit further explanation.