The Democratization of Injustice: How Judicial Elections Affect the Judiciary’s Ability to Protect Minority Rights

Chad Gasman ’20

Diane Watson, a former United States Representative from California’s 33rd District, argued in front of the entire House of Representatives that “the judicial branch has often been the sole protector of the rights of minority groups against the will of the popular majority” [1]. This idea is the driving force behind much of the judiciary—that because the will of the public, through tyranny of the majority, can conflict with the rights of the minority, the courts exist as a check on this public will. However, this check is only effective in-so-far as the court is removed from needing to respond to the will of the public; this distance from popular opinion that the court has enjoyed is under considerable threat in the status quo, as judicial elections for state-level judgeships are becoming increasingly politicized. These judicial elections threaten the very principles of judicial independence that keep the courts fair and impartial. Because judicial elections tie judges to public opinion rather than legal precedent, they degrade the ability for the judiciary’s to preserve the rights of the minority.

Judicial elections, at their core, have one major problem—the electorate is simply too uneducated to make a proper decision as to who should best serve on the bench. In fact, in 2014 the average voter couldn’t even name the three branches of government; according to an Annenburg survey, only 36% of Americans could list the executive, the legislature, and the judiciary [2]. If the average voter couldn’t even list the judiciary as a separate branch of government, there is little hope that the voting populace of America is capable of making rational decisions about judicial elections that are based on judicial philosophies that few outside of the judiciary understand.

Additionally, the way in which these elections are held does little to mitigate this ignorance. The Los Angeles County judicial elections are a key example of this failure to mitigate public ignorance. In June of 2014, with 26 candidates running for 12 judicial seats in the County, voters were tasked with making important, yet minute, distinctions among a plethora of candidates. However, the candidates had little opportunity to distinguish themselves on the ballot: “candidates only get to use three words for their job title” on the ballot [3]. Without meaningful information, voters “tend to vote based on factors that have little or no bearing on a candidate’s qualifications … there have been instances of qualified sitting judges with foreign-sounding last names being defeated by less-qualified or unqualified challengers with Anglo-Saxon-sounding names” [4].

When voters look past these rather arbitrary factors, they are not making decisions based on a judicial philosophy or legal issues; rather, they are relying on information they receive from paid advertisements to make their decisions in judicial elections. Even before Citizens United allowed nearly unlimited spending in campaigns, special interests were spending millions of dollars in advertising on local judicial elections. In fact, according to Adam Skaggs, between 2000 and 2009, “an estimated $93.6 million was spent on television advertising by candidates and interest groups hoping to sway judicial contests” [5]. Melinda Gann Hall also found that television advertising is used during a campaign, the airings of “attacks in particular” have increased substantially [6], and that, more and more, voters “may prefer policy talk by judicial candidates” as opposed to discussions of jurisprudence and pressing legal issues [6]. More importantly Hall also found that “attack airings mobilize voters” in judicial elections, making them incredibly effective at swaying the vote in a particular candidate’s favor [7].

The problem with judicial elections ultimately lies in the fact that voters who are uneducated about legal issues will turn to other determinants to make their decision. The determinants are overwhelmingly and incredibly politicized, as attack advertisements that center on policy tend to be. As such, justices are elected not based on their legal merits, but based on how well they conform to the public opinion surrounding particular policy issues.

Notably, studies have found that elections can alter the decision-making of elected judges and justices on the bench. One such study, conducted by Lambda Legal in 2016, found that “elected judges are less likely to support gay rights than are appointed ones” [8]. The statistics themselves are particularly striking, as “State Supreme Courts whose justices were elected in partisan elections supported gay rights 53 percent of the time,” a number that grew “to 82 percent for appointed systems” [9]. This suggests that justices that are elected act significantly more like politicians than jurists, making decisions that take into account public opinion and politics in addition to legal precedent as opposed to only taking legal precedent into account. While it is not a damning condemnation of elected justices, this statistic at the very least reveals that elected justices could be influenced by public opinion enough to change the way that they rule. This goes against the characteristics of an ideal judge that Chief Justice John Marshall, arguably the country’s first great jurist, espoused—that a judge ought to be “perfectly and completely independent” [10].

The implications of a court that rules off of public opinion rather than legal precedent are dangerous and far-reaching. Even just the aforementioned example of the disparity around protection of LGBTQ rights ought to be enough to raise some alarms among political and judicial scholars, as this example alone shows that the rights of a minority group potentially stem not from the Constitution or from law, but from the public’s will to grant them those rights. In numerous cases where the courts have found that a right exists and that it deserves protection from government intrusion, the public has often disagreed with the jurists who made the decision. The gay marriage decisions—Hollingsworth v. Perry, United States v. Windsor, and finally Obergefell v. Hodges—all experienced significant public backlash, and in perhaps the most explicit example of the court as a block against public opinion, the interracial marriage decision in Loving v. Virginia was written when roughly 70 percent of Americans disapproved [11].

It is clear that public opinion is often antithetical to the rights of the minority, with the courts being the independent actors who serve to protect the latter. However, as judicial elections become increasingly politicized, and as judges are bound, more and more, to the will of the public rather than to the Constitution, the ability of the court to protect the minority is weakened. Ultimately, electing judges and justices degrades their ability to be impartial and independent defenders of the rights of the minority.

Now, arguments have been made for the necessity of keeping judges and justices accountable to the people. One particularly compelling argument in favor of judicial elections is that judges, particularly Supreme Court justices (on the state and federal level), act as policymakers in some regards. David Pozen argues that even the Supreme Court has acknowledged that “judges do engage in policymaking at some level” (2008, p. 274). If these justices do, in fact, act in similar capacities to other policymakers, such as legislators or executive officials, then there is merit to the necessity of their election. People ought to have their voice heard when it comes to policy that affects them, whether that policy comes out of the legislative chambers or comes from a judicial bench. However, this view of the judiciary ignores their role as a check to policymaking, rather than as the primary policymakers. The courts that make up the judiciary are the last line of defense against unconstitutional laws and regulations, and that is their primary role, not policymaking.

The judicial system was established with the purpose of being the fair and impartial arbiter of the law, and has seen this role expanded to being the vanguard of constitutional rights against unnecessary government encroachment. They are, at their very core, not meant to be responsive to the people; rather, they are meant to serve as a check on public opinion itself. Judicial elections, which unnecessary entangle the courts with public opinion, leave them unable to perform their primary duty of independently interpreting the law and applying it fairly and justly. Unable to do so, the court’s ability to protect the rights of the minority is dangerously diminished.

 

Notes

[1] 150 Cong. Rec. 13, 17253 (2004) (statement of Rep. Watson).

[2] Ilya Somin, What No One Talks About During Election Season: Voter Ignorance, Forbes (Nov. 3, 2014, 3:08 PM), http://www.forbes.com/sites/realspin/2014/11/03/what-no-one-talks-about-during-election-season-voter-ignorance/#3e9c90b23a22.

[3] Jessica A. Levinson, Op-Ed: Why Voters Shouldn’t be Electing Judges, LA Times (May 8, 2014, 5:31 PM), http://www.latimes.com/opinion/op-ed/la-oe-levinson-end-judicial-elections-20140509-story.html.

[4] Id.

[5] Adam Skaggs, Buying Justice: The Impact of Citizens United on Judicial Elections (Brennan Ctr. for Justice ed., 2010).

[6] Melinda G. Hall, Attacking Judges: How Campaign Advertising Influences State

Supreme Court Elections 94 (Stanford Law Books ed., 2015).

[6] Id. 93.

[7] Id.

[8] Adam Liptak, Judges Who Are Elected Like Politicians Tend to Act Like Them, NY Times (Oct. 3, 2016), http://www.nytimes.com/2016/10/04/us/politics/judges-election-john-roberts.html?_r=0.

[9] Id.

[10] Id.

[11] Molly Ball, How Gay Marriage Became a Constitutional Right, The Atlantic (Jul. 1, 2015), http://www.theatlantic.com/politics/archive/2015/07/gay-marriage-supreme-court-politics-activism/397052/.

[12] David E. Pozen, The Irony of Judicial Elections, 108 Columbia L.R. 265, 273-277 (2008) (discussing the virtues of judicial elections).

 

 

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