State Courts, Money and Politics

In order to promote debate and understanding regarding the role state courts play in our system of democracy and the effects elections and other judicial selection systems can have on the administration of justice, the American Constitution Society is pleased to sponsor empirical research on these important topics.

Skewed Justice

Citizens United, Television Advertising and State Supreme Court Justices’ Decisions in Criminal Cases

The explosion in spending on television attack advertisements in state supreme court elections accelerated by the Citizens United decision has made courts less likely to rule in favor of defendants in criminal appeals. State supreme court justices, already the targets of sensationalist ads labeling them “soft on crime,” are under increasing pressure to allow electoral politics to influence their decisions, even when fundamental rights are at stake.

A new report, Skewed Justice: Citizens United, Television Advertising and State Supreme Court Justices’ Decisions in Criminal Cases by Dr. Joanna Shepherd and Dr. Michael S. Kang looks at the increase in television attack ads on state judicial decision-making. This study’s two principal findings:

The more TV ads aired during state supreme court judicial elections in a state, the less likely justices are to vote in favor of criminal defendants. As the number of airings increases, the marginal effect of an increase in TV ads grows. In a state with 10,000 ads, a doubling of airings is associated on average with an 8 percent increase in justices’ voting against a criminal defendant’s appeal.

Justices in states whose bans on corporate and union spending on elections were struck down by Citizens United were less likely to vote in favor of criminal defendants than they were before the decision. Citizens United changed campaign finance most significantly in 23 of the states where there were prohibitions on corporate and union electioneering prior to the decision. In these states, the removal of those prohibitions after Citizens United is associated with, on average, a 7 percent decrease in justices’ voting in favor of criminal defendants.

Citizens United (which removed regulatory barriers to corporate electioneering) has fundamentally changed the politics of state judicial elections. Outside interest groups, often with high-stakes economic interests or political causes before the courts, now routinely pour millions of dollars into state supreme court elections. These powerful interests understand the important role that state supreme courts play in American government, and seek to elect justices who will rule as they prefer on priority issues such as environmental and consumer protections, marriage equality, reproductive choice and voting rights. Although their economic and political priorities are not necessarily criminal justice policy, these sophisticated groups understand that “soft on crime” attack ads are often the best means of removing from office justices they oppose.

Skewed Justice is based on the work of a team of independent researchers from the Emory University School of Law. With support from the American Constitution Society, the researchers collected and coded data from over 3,000 criminal appeals decided in state supreme courts in 32 states and examined published opinions from 2008 to 2013. State supreme courts are multi-judge bodies that decide appeals collectively by majority vote; the researchers coded individual votes from over 470 justices in these cases. These coded cases were merged with data from the Brennan Center for Justice reporting the number of TV ads aired during each judicial election from 2008 to 2013. A complete explanation of this study’s methodology is below.

Skewed Justice’s findings have several important implications. Not only do they confirm the influence of campaign spending on judicial decision making, they also show that this influence extends to a wide range of cases beyond the primary policy interests of the contributors themselves. Even more troubling, the findings reveal that the influence of money has spread from civil cases to criminal cases, in which the fundamental rights of all Americans can be at stake.




Justice at Risk

Money and State Courts

New data from independent researchers reveal growing influence of contributions on state supreme court judges. It has been 15 years since comprehensive data have been compiled and studied regarding the relationship between campaign contributions and state judicial elections.

Justice at Risk: An Empirical Analysis of Campaign Contributions and Judicial Decisions, by Joanna Shepherd, a law professor at Emory University, analyzes data from 2,345 business-related state supreme court published opinions from all 50 states in 2010-2012 and more than 175,000 contribution records, and reveals a growing relationship between money and how state supreme court justices rule in business-related matters.

ACS sponsored the study to discover whether more money being funneled into state supreme court elections is placing fair and impartial courts at risk.

The report focused on business contributions and their impact on state supreme court decisions because when direct and indirect contributions are taken into account, business interests dominate spending on judicial elections. Thus, while business interests and other groups contributed roughly equal amounts to candidates in state supreme court races from 2000-2009, business organizations dominated independent expenditures in those races, accounting for more than 90 percent of paid television advertising.

To learn more about this report—particularly the data that it draws from—visit the special reports and collaborations page of the National Institute for Money in State Politics. We strongly encourage interested parties to review the data, study the issue further, and contribute to and expand the important conversation about fair courts. NIMSP is the only nonpartisan, nonprofit organization revealing the influence of campaign money on state-level elections and public policy in all 50 states. The organization encourages transparency and promotes “independent investigation of state-level campaign contributions by journalists, academic researchers, public-interest groups, government agencies, policymakers, students and the public at large.”

 

Map of State Court Judicial Selection Methods

 


 

ANALYSIS AND COMMENTARY

PODCAST: "Money, Politics and State Courts"

The Brennan Center's Alicia Bannon discussed findings on campaign contributions and political tactics in the 2012 election cycle from The New Politics of Judicial ElectionsFormer Justice James Nelson talked about his experiences as a member of the Montana Supreme Court and his views on the current state of judicial elections. And Emory University's Joanna Shepherd discussed the findings of ACS's own Justice At Risk report on the relationship between campaign contributions by special interests and judicial decisions in cases involving those interests.

VIDEO: "Justice at Risk: The Influence of Politics and Money on State Courts"

Fair and impartial state courts play a vital role in our democracy, but a rising tide of high stakes campaigns featuring massive campaign contributions and contentious politics pose a threat to them. Leading experts discussed the results of two important new studies on state court elections, the role campaign contributions play in them and the effects contributions can have on judicial decisions.

VIDEO: "Money, Politics, and State Courts: A Threat to a Fair and Impartial Judiciary?"

Important new empirical research sponsored by ACS establishes a correlation between political contributions to state court judges and judicial decisions favoring business interests. The 2012 election cycle shows that corporate contributions to judicial candidates continue to grow, and partisanship in state court elections is accelerating. A panel of expert academics and judges examined the scope of this problem and proposed solutions.

VIDEO: "The View from the Bench: Judicial Campaigns and Public Confidence in the Courts"

Thirty-nine states elect their judges in some fashion, whether as an initial selection process or through retention voting. These elections have the propensity to turn judges into politicians, at the potential cost of public skepticism regarding judicial impartiality. What can be done to address the perception that justice can be bought? This panel of state court judges shared their experiences and recommendations about how to enhance public confidence in the courts.


 

NEWS AND COMMENTARY

Op-Eds

  • The Missoulian, “Citizens United poised to destroy judicial impartiality," by James C. Nelson, retired Montana Supreme Court justice, July 30, 2013 (picked up by 1 outlet)

News

  • The Week, "Welcome to Tennessee, Where Lawmakers Are Trying to Kneecap Judges," by Andrew Cohen, January 29, 2014

  • Truthout, "Four Years After Citizens United: Is Campaign Cash Buying Justice in State Courts?" by Mike Ludwig, January 22, 2014

  • The Texas Tribune, "Brandenburg and Lyle: The TT Interview," by Ross Ramsey, November 27, 2013

  • The Atlantic, "An Elected Judge Speaks Out Against Judicial Elections," by Andrew Cohen, September 3, 2013

  • The Washington Post, “When businesses give judges money, they usually get the rulings they want,” by Dylan Matthews, June 11, 2013

 
and more stories from...
 

 

ACSblog CONVERSATION

 



RELATED RESOURCES

  • Federalist Society State Courts page


Related Articles & Reports

  • "The New Politics of Judicial Elections: 2009-2010," (October 26, 2011) by Adam Skaggs and Maria da Silva, Brennan Center for Justice at NYU School of Law; Linda Casey, National Institute on Money in State Politics; and Charles Hall, Editor and Co-Author, Justice at Stake Campaign

  • "The New Politics of Judicial Elections 2000-2009 Decade of Change," (August 2010) by James Sample, Hofstra University School of Law; Adam Skaggs and Jonathan Blitzer, Brennan Center for Justice at NYU School of Law; Linda Casey, National Institute on Money in State Politics; and Charles Hall, Editor, Justice at Stake Campaign

  • "The New Politics of Judicial Elections 2006," (May 17, 2007) by James Sample and Lauren Jones, Brennan Center for Justice at NYU School of Law; Rachel Weiss, National Institute on Money in State Politics; Jesse Rutledge, Editor, Justice at Stake Campaign

  • "The New Politics of Judicial Elections 2004," (December 31, 2004) by Deborah Goldberg and Sarah Samis, Brennan Center for Justice at NYU School of Law; Edwin Bender and Rachel Weiss, National Institute on Money in State Politics; Jesse Rutledge, Editor, Justice at Stake Campaign