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)
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.”
- "Justice at Risk in a Nutshell" - a one-page summary with highlights
- "Justice at Risk" - 10 Questions & Answers
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 Elections. Former 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.
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.
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.
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
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)
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
McClatchy Company Washington DC Bureau, “Business donations to judges’ campaigns often equal friendly rulings,” by Michael Doyle, June 11, 2013 (picked up by 44 outlets)
"The Deadly Problem with Judicial Elections in Alabama" (November 21, 2013) by Meagan S. Sway, Associate, Paul, Weiss, Rifkind, Wharton & Garrison LLP
"Justice at Risk Report Adds to Story of Corporate Efforts to Shape the Law" (November 12, 2013) by Nicholas Alexiou
"Texas Justice Gives ‘Candid, Frightening’ Responses to Judicial Elections Study" (September 3, 2013) by Jeremy Leaming
"Justice O’Connor Criticizes Judicial Elections; Data in ACS Study Backs Her Up" (August 15, 2013) by David Lyle
"New Report Bolsters Perception that 'Justice is for Sale'" (June 17, 2013) by Liz Seaton, Acting Executive Director, Justice at Stake
"Is Freedom of Speech at Risk in the Election?" (October 16, 2012) by David Kairys, Professor of Law at Temple University and author of Philadelphia Freedom, Memoir of a Civil Rights Lawyer
Justice at Stake information page
FollowTheMoney.org information page, National Institute on Money in State Politics
Brennan Center for Justice at New York University School of Law information page
Institute for the Advancement of the American Legal System (IAALS) library
American Judges Association publications
Federalist Society State Courts page
Related Articles & Reports
"The Supreme Court Loves Juries, Except When It Doesn't" (November 18, 2013) by Andrew Cohen, The Atlantic
"Criminals and Campaign Cash" (October 28, 2013) by Billy Corriher, Center for American Progress
"The New Politics of Judicial Elections" (October 23, 2013) by Alicia Bannon, Brennan Center for Justice at NYU School of Law; Eric Velasco, Consultant; Linda Casey, National Institute on Money in State Politics; and Lianna Reagan, Brennan Center for Justice at NYU School of Law
"Judicial Elections, Unhinged," (November 18, 2012), The New York Times Editorial
"Merit Retention and Selection Elections Keep Judges Out of Politics," (November 1, 2012) by Billy Corriher, Center for American Progress
"Partisan Judicial Elections and the Distorting Influence of Campaign Cash," (October 25, 2012) by Billy Corriher, Center for American Progress
"Lower Courts: Selection Methods and Campaign Finance," (July 31, 2012) by Linda Casey, FollowTheMoney.org
"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
"Big Money And Impartial Justice: Can They Live Together?" (2010) by Bert Brandenburg, Ariz. L. Rev. 52
"Interested Parties," Texans for Public Interest, October 2009
"Corporate Contributions Stain Supreme Court Campaigns," Texans for Public Interest, October 2008
"Money, Politics, and Impartial Justice," by Joanna M. Sheppard, Emory University, 2008
"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