Justice for Sale?

August 19, 2010
Guest Post

Bert Brandenburg is executive director of the Justice at Stake Campaign, a nonpartisan campaign with 50 state and national partners that works to keep courts fair, impartial and free from special-interest influence.
The last 10 years have brought a revolution in the election of state Supreme Court judges. Special-interest cash has become king. Most Americans fear that justice is for sale.

This week, three reform groups released the first comprehensive national overview of spending on high court elections in the 2000-2009 decade, and on the political powerhouses seeking to tilt the scales of justice.

The report, "The New Politics of Judicial Elections, 2000-2009: Decade of Change"- released by Justice at Stake, the Brennan Center for Justice and the National Institute on Money in State Politics - describes a decade-long attack on the very notion of impartial justice. And the campaign trail attacks are paired with a litigation crusade to destroy meaningful election regulation.

Some of the report's findings:

  • Spending on state Supreme Court elections more than doubled in 2000-2009; candidates raised $206.9 million, compared with just $83.3 million in the 1990s.
  • Outside groups - funded by business groups, plaintiffs' lawyers and unions - poured in at least $39 million more in TV ads not approved by court candidates, ads that often viciously attacked and distorted the candidates' records. Much of this involved secret money from unknown bankrollers.
  • Twenty of the 22 states that hold at least some competitive elections for Supreme Court had their costliest election ever.

There is nothing new about states electing judges. About 85 percent of all state judges face some form of election.

What is new is the tidal wave of money. High court judges must routinely raise big money from parties who appear before them in court. Outside groups are spending millions more on ads to pressure judges and trash their reputations.

All this money has caused profound unease. Polls repeatedly have shown that three Americans in four believe campaign cash affects courtroom decisions. And Justice Sandra Day O'Connor says public trust is injured when elected judges appear beholden to a small group of self-interested bankrollers.

"This crisis of confidence in the impartiality of the judiciary is real and growing," she wrote in the report's foreword. "Left unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold."

Why did special interests discover court elections? Two words: tort wars.

In the 1990s, some state supreme courts overturned limits on civil damages, and multi-billion dollar awards in tobacco and asbestos litigation triggered a counterattack by big business.

Beginning in 2000, groups like the U.S. Chamber of Commerce and National Association of Manufacturers, aided by leaders of such corporate giants as Home Depot and AIG insurance, began pouring record amounts into high court races. Plaintiffs' lawyers and unions have spent millions of their own, creating a full-fledged arms race for control of the courts.

In 2004, the winner of an Illinois Supreme Court seat said the $9.3 million raised by him and his opponent was "obscene." That same year, coal executive Don Blankenship spent $3 million to help elect a West Virginia justice, seeking a friendlier court to overturn a $50 million jury award. The justice, Brent D. Benjamin, was ultimately disqualified in a landmark 2009 U.S. Supreme Court case, Caperton v. Massey.

Several states have enacted reforms. North Carolina, New Mexico, Wisconsin and West Virginia have enacted public financing, so that judges don't have to dial for dollars. And Michigan established a new rule making it easier to disqualify judges from cases involving campaign benefactors.

But even these reforms are under threat in federal court. Using a radically expansive interpretation of the First Amendment, while trying to waive off the Constitution's guarantee of due process, opponents of campaign laws have attacked public financing, corporate spending bans, financial disclosure laws, and limits on explicitly partisan activity by judges.

In Missouri, Tennessee and Alaska, interest groups have battled another longstanding method for insulating courts from special interests: merit selection commissions, which identify qualified judicial candidates before governors make a final appointment.

If these groups get their way, special interests could spend unlimited amounts, in total secrecy, to elect the judges of their choice, presumably to get the rulings that they want.

That might be a cozy world for those writing checks, but it's a scary world for the rest of us - businesses and individuals alike - who depend on courts for a fair, impartial resolution of our disputes. Big money, campaign politics, and secret spending have little to do with the words carved over the Supreme Court's bronze doors: Equal Justice Under Law.