Justice O’Connor Criticizes Judicial Elections; Data in ACS Study Backs Her Up

August 15, 2013

by David Lyle

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-Constitution reported. 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.

To learn more about this important issue, please visit ACS’s State Courts Resource Page.