At The Daily Beast, Geoffrey R. Stone, former ACS Board Chair and current Co-Chair of the Board of Advisors for the ACS Chicago Lawyer Chapter as well as Co-Faculty Advisor for the University of Chicago Law School ACS Student Chapter, discusses his experience on the President’s Review Group on Intelligence and Communications Technologies and why “constant, rigorous, and independent review is essential if we are to strike the proper balance between liberty and security in a changing world.”
The Supreme Court heard oral argument yesterday in a case involving an “Ohio law that criminalizes the spreading of false information about a political candidate during a campaign.” The challenge comes after an anti-abortion rights group mischaracterized former Rep. Steve Driehaus’ (D-Ohio) stance on abortion during his 2010 reelection campaign. Robert Barnes at The Washington Post has the story.
Peter Hardin at GavelGrab notes that if New Jersey Gov. Chris Christie chooses not to reappoint Chief Justice Stuart Rabner it could “give rise to the perception that Christie was attempting to intimidate judges working without tenure.”
At The New Yorker’s Daily CommentHendrik Hertzberg explains New York Gov. Andrew Cuomo’s decision to join the National Popular Vote (NPV) interstate compact.
In an interview with NPR’s Robert Siegel and Audie Cornish, Daniel Webster—Director of the Johns Hopkins Center for Gun Policy and Research—discusses the grave consequences that followed Missouri’s 2007 repeal of a law requiring background checks for gun buyers.
President Obama continues to face criticism concerning the diversity of his judicial nominees. MSNBC’s Adam Serwer reports on growing liberal concern surrounding the president’s judicial nominees in Georgia.
Ta-NehisiCoates of The Atlantic reflects on the Jordan Davis murder, eloquently identifying racism in America as “not merely a belief system but a heritage.”
A group of legal organizations are using television advertising to push the issue of court transparency at the Supreme Court. Josh Gerstein of Politico has the story.
At CAC’s Text & History Blog, Tom Donnelly shares “six reasons to keep an eye on the Greenhouse Gas Cases.”
Matt Bodie at Prawfs Blawg argues in favor of incentivizing cheaper law school course material.
TheWashington Post recently published a "Letter to the Editor" from ACS President Caroline Fredrickson, which touched on the pernicious influence of campaign contributions on state courts.
In response to a Post article citing efforts by the U.S. Chamber of Commerce to push its agenda through various state courts (perhaps having realized federal courts have already been conquered), Fredrickson cited ACS’s 2013 report, Justice at Risk, which provides an empirical analysis of campaign contributions and their impact state judicial decisions. As Fredrickson noted, the data shows that “the more campaign contributions from business interests that justices receive, the more likely they are to side with business litigants.”
Since its release in June, Justice at Risk has been routinely cited by media outlets across the nation, including: The Atlantic, Mother Jones, The Des Moines Register, The Miami Herald and many others. As former Montana Supreme Court Justice James C. Nelson phrased it in the pages of The Missoulian, Justice at Risk is an “objective, non-partisan report . . . [that] provides critical data on the effect of campaign expenditures on judicial behavior from 2010-2012.”
Cohen, a contributing editor at The Atlantic and legal analyst for “60 Minutes,” asked Willett to respond to Justice at Risk, a report issued this summer by ACS on campaign contributions to state Supreme Court justices and state court decision-making. In part the study found a significant relationship between business group contributions to state Supreme Court justices and the voting of those justices in cases involving business matters. Indeed the report found that a justice who receives half of his or her contributions from business groups would be expected to vote in favor of business interests almost two-thirds of the time. Justice at Risk also noted that because of recent opinions by the U.S. Supreme Court there is more and more money flowing into judicial campaigns via business interests.
Cohen notes that Willett “graciously” agreed to read the report and then respond to questions about “judicial elections and the role campaign contributions play in them.” (Last year for The Atlantic, Cohen covered the Texas system for electing judges, noting Willett’s campaign-style website.) Cohen describes Willett’s comments about Justice at Risk as “both candid and frightening.”
Willett provides a fairly lengthy response to Cohen, conceding that he strongly understands the “suspicion that donations drive decisions. That skepticism siphons public confidence, and that’s toxic to the idea of an impartial, independent judiciary. I can only speak for myself and say that it flatly doesn’t happen.”
Willett adds that if the Texas Supreme Court issues opinions that are business friendly it is more likely the fault of Texas lawmakers. “My court doesn’t put a finger on the scale to ensure that preferred groups or causes win, but the Legislature sure does. Lawmakers are fond of lawmaking, and the business lobby exerts significant influence on state policymaking.”
Part of Cohen’s response:
The justice is saying that he holds his nose while he campaigns for votes by pledging to be "conservative" and by placing the endorsements of men like James Dobson and Foster Friess (and current Texas Attorney General Greg Abbott) on prominent places on his website. (How would you feel, as an atheist, with Justice Willett on your case?) And he is saying that the decidedly pro-business Texas legislature is more to blame than the decidedly pro-business Supreme Court for the decidedly pro-business bent of Texas law. They have reaped what they have sown.
This week retired U.S. Supreme Court Justice Sandra Day O’Connor said in a speech that the need for judges to raise money to win contested elections presents one of the greatest threats to a fair and impartial judiciary, The Atlanta Journal-Constitutionreported. The validity of Justice O’Connor’s concerns is supported by the data and analysis in Justice at Risk, a report recently published by ACS on campaign contributions to state supreme court justices and state court decision making.
In the speech, Justice O’Connor said:
Judicial elections powered by money and special interests create the impression, rightly or wrongly, that judges are accountable to money and special interests, not the law[.] … Our judges should never be beholden to any constituency.
In my view, that need to raise money to compete in those elections presents one of the greatest threats to fair courts and that threat is increasing[.]
In Justice at Risk, Professor Joanna Shepherd of Emory University School of Law uses sophisticated empirical research techniques to analyze 2,345 business-related state supreme court published opinions from all 50 states and over 200,000 contributions to sitting justices and concludes that:
There is a significant relationship between business group contributions to state supreme court justices and the voting of those justices in cases involving business matters.;
The more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court;
A justice who receives half of his or her contributions from business groups would be expected to vote in favor of business interests almost two-thirds of the time; and
The empirical relationship between business contributions and justices’ voting for business interests exists only in partisan and nonpartisan election systems; there is no statistically significant relationship between money and voting in retention election systems.
More than 90 percent of the legal cases in the United States are handled by state courts, and 89 percent of the states require judges to face the voters in some type of election. Dozens of states require their supreme court justices to campaign and raise many in just the sort of contested elections (whether partisan or nonpartisan) that both Justice O’Connor and Justice at Risk suggest can be so problematic.
Justice O’Connor supports merit selection systems, in which bipartisan nominating commissions to put slates of candidates to the governor, who picks from that list. Voters then periodically vote on whether to retain these judges (without opposition from another candidate). As noted above, In Justice at Risk, Professor Shepherd found that there is no statistical relationship between contribution in retention elections and decisions by justices.