June 17, 2013

New Report Bolsters Perception that 'Justice is for Sale'

business interests, Campaign Finance, Citizens United v. FEC, judicial elections, Justice at Risk, Justice at Stake, Justice Sandra Day O'Connor, Liz Seaton, Sandra Day O'Connor, state supreme courts, The New Politics of Judicial Elections 2000-2009

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.

While the report stops short of deciding “[w]hether the campaign contributions determine which judges are on the bench or they influence how the judges on the bench decide cases – or both,” it  underscores that “the rising tide of campaign contributions from interest groups is placing fair and impartial justice at risk.” Justice at Stake agrees. This study shows that the public is right to be concerned, and vigilant. 
Retired Supreme Court Justice Sandra Day O’Connor, who recently joined Justice at Stake as its First Honorary Chair, warned several years ago of a “crisis of confidence” in the integrity of our courts:
We all expect judges to be accountable to the law rather than to political supporters or special interests. But elected judges in many states are compelled to solicit money for their election campaigns, sometimes from lawyers and parties appearing before them. Whether or not these contributions actually tilt the scales of justice, three out of four Americans believe that campaign contributions affect courtroom decisions.
This crisis of confidence in the impartiality of the judiciary is real and growing. Left unaddressed, the perception that justice is for sale will undermine the rule of law that courts are supposed to uphold.
Justice O’Connor’s remarks provided a foreword to “The New Politics of Judicial Elections 2000-2009, Decade of Change,” a report compiled by Justice at Stake and several partner organizations. We are pleased that the American Constitution Society found this and other reports by JAS and its partners useful in writing its own study.
Today, the “Justice at Risk” report has fresh facts that unfortunately tend to support  a popular perception that “justice is for sale” in one important context, that of business cases in state courts.  When it comes to enacting reforms to protect fair and impartial courts, the report helps build a stronger case.