In the weeks leading up to Election Day 2018, the Ohio Supreme Court was deciding a run-of-the-mill case about insurance liability. There was around $6 million at stake, and given the facts, the case didn’t receive much media notice.
The insurance industry sure was paying attention, though. Ohio elects its state supreme court justices, and while the court was considering the case, industry executives and political committees poured $150,000 into the campaign coffers of two judicial candidates. One of them was a sitting justice who was considering the case while running to keep her seat.
Judges are supposed to decide cases fairly, based on the law and without thinking about financial or political pressure. But if you were the one suing the insurance company, would you feel confident you were getting a fair shake?
Ohio is far from alone. Situations like these, in which judges face unseemly pressures while deciding cases, are now common features in many of the 38 states that use elections to pick supreme court justices.
That’s because, as a new Brennan Center report examining state supreme court elections in the 2017–18 cycle shows, high court races across the country are highly politicized and awash with money. Much of that money comes from either people with cases in front of the court or interest groups that hide their donors’ true identities.
In all, $39.7 million went to elect state supreme court justices in 2017–18, most of it focused in a handful of contests that illustrate the worst of judicial elections today.
For example, in summer 2018, Michigan Supreme Court Justice Elizabeth Clement, a recently appointed Republican who was running for a full term on the court in November, heard a case about whether a redistricting reform measure could appear on the ballot. Republican Party activists put her on notice: kill the measure or lose their support.
When Clement ruled with the majority of the court to allow redistricting reform to go before voters, the party followed through on its threat. The party and its conservative allies spent $800,000 to support her fellow Republican who voted the other way in that case but supported Clement with just $75,000. The party left her name off campaign materials, and party activists advised against endorsing her so she would “think twice about violating our Constitution.”
Clement managed to hold her seat, but the threat is clear to justices in future cases with political implications: toe the party line in your rulings or risk losing your job.
While some of the money in judicial elections comes from local interests, as it did in Ohio and Michigan, much of it now also flows from national groups seeking to influence who sits on courts across the country. In Arkansas and West Virginia, special interest groups spent $5 million to influence state supreme court elections, accounting for more than two-thirds of every dollar spent in those races.
Most of that was “dark money,” which comes from secret donors, or funneled through so many entities that the public will never know who supplied those funds and why they cared so much about who sat on the states’ highest courts. An analysis of IRS filings suggests that much of the money came through the Judicial Crisis Network, the conservative, DC-based dark money group, which was simultaneously working to seat Brett Kavanaugh on the U.S. Supreme Court.
The interest groups and donors would likely say they’re just supporting the judges they deem most qualified. But the spending puts pressure on judges, consciously or not, to avoid losing the support of big-money backers or ruling in ways that could become the focus of attack ads. And, with dark money involved, these pressures operate without public scrutiny of potential conflicts of interest.
As much as we might hope these political and financial pressures won’t influence judges’ rulings, research suggests otherwise. Election year pressures appear to affect judicial decision-making, resulting in better outcomes for justices’ big donors and political party supporters — effects which disappear when a judge is no longer standing for election.
Perhaps most troubling, election pressures also appear to result in worse outcomes for criminal defendants, possibly because of how campaign ads exploit judges’ decisions in criminal cases. In 2018, for example, interest groups spent $1 million in Arkansas and Wisconsin on ads mischaracterizing decisions favorable to defendants, accusing the judges of putting their communities in danger.
All of the above puts at serious risk the public’s confidence in the judiciary. Given the state of judicial elections today, why should the public believe elected judges are anything other than politicians in robes?
But states need not accept the status quo. There’s a lot we can do to insulate courts from the worst effects of judicial elections, from strengthening ethics rules that prohibit judges from hearing cases involving major supporters to public financing of judicial campaigns. States can also make more fundamental changes to how they pick judges, such as moving from elections to publicly accountable appointment systems.
With battleground states like Wisconsin, Ohio, Michigan, Iowa, and North Carolina each poised to select justices in high stakes elections in 2020, we should expect more difficult questions about the role of politics and money in judicial elections. But in trying times for American democracy, states also have the chance to ensure courts are worth of the public’s trust.