Judicial independence

  • January 30, 2015

    Five years after the Supreme Court in Citizens United struck down restrictions on corporate spending in elections, the American political landscape has become one where influence can be bought and the voices of wealthy donors drown out other perspectives. 

    Almost immediately after the Citizens United decision, outside spending in elections spiked.  Over the next five years, it more than doubled.  Super PACs used hefty budgets to produce attack ads against candidates who were not to their liking—affecting outcomes in not only political races, but also in state judicial elections. 

    Judges perceived as being unfriendly to PACs’ interests were attacked under the pretense of being “soft on crime,” resulting in measurably harsher treatment of criminal defendants by state supreme court justices.  Further, the last five years have seen a flood of dark money into elections.  As many commentators have noted, donor secrecy breeds mistrust and, possibly, corruption.

    Americans expect the courts to be fair and impartial, but as special interest groups spend more and more money to influence courts, public faith in these institutions is waning.  Soon, the Supreme Court will have to decide how important judicial independence is to our justice system in Williams-Yulee vs. The Florida Bar, a case that could, if wrongly decided, further diminish public trust in the courts.  For those concerned about Citizens United, Williams-Yulee, or the corrosive impact of unrestrained special interest spending on our democracy, see the following ACS resources:

    Skewed Justice: Citizens United, Television Advertising and State Supreme Court Justices’ Decisions in Criminal Cases, Joanna Shepherd and Michael S. Kang

    Five Years Later, Citizens United Wreaks Havoc on Our Democracy, Fred Wertheimer, ACSblog

    The Top Five Myths About the Democracy For All Amendment, John Bonifaz, ACSblog

    Supreme Court Briefing: Williams-Yulee vs. The Florida Bar, Video

    Interview with Professor Tracey George on Williams-Yulee, Video

    Democracy and Our State Courts: Fighting Back After Citizens United, Video


  • October 24, 2014

    by David Lyle

    Earlier this week, ACS issued a groundbreaking report looking into the influence money, and in particularly, the television attack ads it buys in state judicial elections, has on rulings by state judges. The report, Skewed Justice: Citizens United, Television Advertising, and State Supreme Court Justices’ Decisions in Criminal Cases, is a compilation of data from over 3,000 criminal appeals decided in state supreme courts in 32 states from 2008 to 2013 and the findings might surprise you.

    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.

    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.

    This study’s two principal findings:

  • November 21, 2013
    Guest Post
    by Meagan S. Sway, Associate, Paul, Weiss, Rifkind, Wharton & Garrison LLP
    On Monday, Justice Sotomayor illuminated what many Alabama defendants and their lawyers have long known: the closer it gets to election season, the less the Sixth and Eighth Amendments matter in capital cases. While only Justice Breyer joined Justice Sotomayor’s dissent, the practice of granting elected judges power to override jury sentences in capital cases should trouble all nine justices, as Alabama’s capital sentencing scheme undermines our entire justice system.
    While a majority of the justices do not appear to accept that Alabama’s sentencing scheme violates a defendant’s Sixth Amendment right to trial by jury, the defendant is not the only player who loses as a result of granting a judge the power to override a jury’s recommendation—jurors also suffer. The Supreme Court has recognized in its Batson jurisprudence that discrimination against a veniremember deprives the defendant of his Sixth Amendment right to a jury and also denies the individual veniremember his “most significant opportunity to participate in the democratic process.” Powers v. Ohio (1991). Alabama’s judicial override system has the same problem. As shown in Bryan Stevenson’s mini-multiple regression analysis, there is a statistically significant relationship between a judge facing an election year and his exercise of judicial override. Thus, a person who serves on a jury, whose judge is facing an election, will see her vote count less than a person serving on a jury whose judge is not. This has the additional negative effect of causing jurors to lose faith in the system, because of the sense that whatever decision they reach it is subject to apparently arbitrary review (and potential reversal) by a judge. A juror may well ask herself, why bother?
    The Court should be concerned with the startling appearance of impropriety that results from Alabama’s capital sentencing scheme. Judges are – and should be – supremely concerned about guarding against any appearance of impropriety, as it undermines society’s trust and confidence in the justice system. The Second Circuit’s recent sua sponte removal of Judge Shira Scheindlin from New York City’s stop-and-frisk litigation comes to mind. There, the court removed Judge Scheindlin because she directed related cases to her docket and granted media interviews while the stop-and-frisk litigation was pending.  Judicial overrides in Alabama provide much more damning evidence of judicial impropriety: Stevenson’s analysis demonstrating an overwhelming correlation between judicial elections and overrides; 92% of all judicial overrides result in death sentences; states where judges are not elected but have the power of override do not exercise that power; and Alabama judges themselves have admitted that elections have influenced their decisions to override a jury’s recommendation of a life sentence.
  • November 12, 2013
    The Washington 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.”
    For more information on Justice at Risk, please visit the ACS State Courts Resources page on our website.
  • June 17, 2013
    Guest Post
    by Liz Seaton, Acting Executive Director, Justice at StakeJustice at Stake is a nonpartisan, nonprofit campaign working to keep America’s courts fair and impartial.

    With its new “Justice at Risk” report, the American Constitution Society documents a correlation between big judicial election spending by U.S. businesses and favorable rulings from elected state courts. The report raises questions that are familiar, and they are troubling.
    The American public insists that courts be impartial, with no special favors for campaign spenders, so that everyone gets a fair day in court. But confidence in the impartiality of our courts has eroded as business and special interest spending on judicial elections soared in the last decade.
    “Justice at Risk” offers a statistical analysis that updates what we know about business interest donations to state supreme court candidates and judicial decisions that followed, specifically in the years since Citizens United:

    - “The more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court.”

    - If a justice’s campaign gets half of its contributions from business groups, then the justice would be expected to favor business interests by voting their way almost two-thirds of the time.

    - The empirical relationship identified in the study between campaign contributions and justices’ voting exists “only in partisan and nonpartisan systems; there is no statistically significant relationship between money and voting in retention election systems,” when a justice stands in a yes-or-no contest with no opponent.

    - For justices affiliated with the Democratic Party, the relationship between business contributions and voting is stronger than for justices affiliated with the GOP.

    These results add to the debate about the critical need for reforms to keep the influence of campaign cash out of the courtroom.