To Justice Kennedy, judges on the bench and judges running for judicial office are two very different animals. On the bench, according to Kennedy, it is essential that judges both are and appear “neutral” because, “the law commands allegiance only if it commands respect,” and the public’s respect depends on neutrality.
On the stump, however, judges need not worry about the appearance of neutrality or the public’s respect. While campaigning for judicial offices, sitting and aspiring judges must be free of restrictions on their speech and the spending of their financial supporters, because it would be ironic to limit the First Amendment protections of the very judges who will later enforce those protections.
This double standard has defined Kennedy’s decisions in cases related to judicial elections. It has also resulted in an existential threat to state judiciaries.
The first of Justice Kennedy’s most important decisions related to judicial elections came in 2009 in Caperton v. A.T. Massey Coal. In that case, the West Virginia Supreme Court had reversed a $50 million judgment against Don Blankenship’s coal company. Voting with the bare majority in the West Virginia court’s decision was a justice who had just benefited from $3 million in independent campaign support from Blankenship.
Kennedy wrote the 5–4 decision holding that independent spending in support of a judicial candidate can raise fairness concerns so grave that a judge’s participation in a case involving a major donor to an outside spender can violate the constitution’s due process guarantees.
The very next year, however, Kennedy authored another 5–4 decision in Citizens United v. FEC. There, Kennedy and the Court held that spending by outside groups doesn’t raise corruption concerns serious enough to allow for restrictions on that spending, making it easier for Don Blankenships across the country to pour unlimited money into efforts to support candidates for all elected offices.
If in Caperton Kennedy threw out a life preserver to litigants seeking fair hearings in elected state courts, in Citizens United he caused a tidal wave. The years following Citizens United saw independent spending explode in judicial races. The 2012, 2014, and 2016 cycles each set records for the share of all campaign spending that came from outside groups: 26, 29, and 40 percent, respectively. In the 2015–2016 cycle, that 40 percent amounted to $27.8 million in spending that didn’t come from the candidates or political parties. To make matters worse, more than 80 percent of that spending was nontransparent – meaning the public was unlikely to ever learn the true source of the spending – making it effectively impossible to know the information necessary to make aCaperton claim.
For the judges on the bench for whom Kennedy demanded impartiality, the impact of this post-Citizens United spending on judicial elections may be even more profound than he realized. The biggest source of spending in state supreme court elections is television spending, and outside spenders account for two-thirds of attack ads, the lion’s share of which focus on judges’ records in criminal cases. And research suggests that judges sentence more harshly in election years, that an increase in television ads in judicial races makes judges less likely to rule in favor of defendants, and that judges facing competitive elections are less likely than other judges to reverse death sentences in capital cases.
Far from safeguarding judicial neutrality, increased spending in judicial races appears to come hand-in-hand with threats to due process and the public’s confidence in its courts. Despite Justice Kennedy’s stated ambivalence about the practice of electing judges, perhaps no other justice has had such a profound role in identifying and exacerbating its worst features.
But there is hope yet. Even after Kennedy’s departure, there will remain a majority of justices that believes judicial integrity, and the public’s confidence in judicial integrity, are worth safeguarding. Over Kennedy’s vociferous dissent, Chief Justice Roberts wrote the Court’s decision in Williams-Yulee v. Florida Bar upholding restrictions on personal solicitation of contributions by judicial candidates. Lower courts across the country have since followed suit, upholding common sense restrictions on judges’ campaign activities to ensure the appearance of impartiality Kennedy believed to be so important.
Justice Kennedy has said that elections are “a difficult world for a jurist, a scholarly, detached neutral person to operate within.” According to existing research, he’s right: spending in judicial races is increasing, transparency is low, and the spending appears to have a measurable effect on judicial behavior. The Roberts Court and its new member will inevitably face more decisions that pit the impartiality of judges on the bench against the unburdened speech of judges on the stump. How the Court balances these interests will determine the position of judges and courts in state democracies for years to come.