The corrosive effect of money in politics on democratic values is certainly not unique to state supreme court elections. But these elections are a powerful object lesson, precisely because the courtroom is supposed to be a place where everyone is equal before the law. The growth of high-cost and politicized state supreme court elections, exacerbated by the rise of outside spending by non-transparent and unaccountable interest groups, threatens courts’ ability to play this role.
The U.S. Supreme Court’s campaign finance jurisprudence looms large over this slow-motion justice crisis — and limits the menu of responses available to states. But the good news is that states retain powerful tools to ensure that judges are not merely politicians in robes.
Strengthening recusal rules and disclosure laws can help avoid the most severe conflicts of interest, while promoting accountability when outside groups choose to weigh in on elections. Public financing of judicial races can give judicial candidates the opportunity to run competitive races without big-money support, so that wealth, connections, and fundraising acumen are not the only pathway to the bench. The adoption of voter guides and judicial performance evaluations can give voters tools to make informed choices, ensuring that a 30-second attack ad is not the only information available about a judicial candidate.
Yet, it is also increasingly clear that politicized supreme court elections are here to stay — and with them, serious threats to judicial integrity. For this reason, states should also look more closely at how they select and retain supreme court justices, and consider structural changes that may better promote important values, including judicial independence and legitimacy.
One key reform would be to adopt a lengthy single term for justices — so that they can decide controversial cases without worrying that it will become fodder for the next election. Another would be to replace elections with a publicly-accountable appointment process, where a nominating commission with diverse membership recruits and vets judicial candidates, and then presents a slate from which the governor can choose. Such a system, some version of which is already used in 22 states, ensures that democratically accountable actors retain a role in choosing judges, while reducing special interest pressures and the risk of cronyism.
“The founders realized there has to be someplace where being right is more important than being popular or powerful, and where fairness trumps strength,” former U.S. Supreme Court Justice Sandra O’Connor has explained. “And in our country, that place is supposed to be the courtroom.” 1 Special interest dollars bidding for justice is fundamentally at odds with this basic principle. As it becomes increasingly clear that the politics of judicial elections is entrenched in states across the country, states must consider — with urgency — how to ensure their courts are capable of ensuring equal justice for all.