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.

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.

Read the full report at the Skewed Justice website.

 


 

NEWS AND COMMENTARY

  • The New York Times, "'Soft on Crime' TV Ads Affect Judges' Decisions, Not Just Elections," by Derek Willis, October 21, 2014

  • The Washington Post, “How judicial campaign ads may be affecting legal decisions,” by Niraj Chokshi , October 22, 2014

  • Think Progress, "The Surprising Way Political Ads Are Impacting Judges Decisions on Alleged Criminals," by Nicole Flatow, October 21, 2014. 

  • Esquire, "A Bad Idea Gets Worser," by Charles P. Pierce, October 22, 2014.

  • McClatchy Company Washington DC Bureau, “Election ads in judicial races can tilt rulings, study finds,” by Michael Doyle, October 21, 2014 (picked up by 22 outlets)

 



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