Produced with research from the National Institute on Money and Politics.
Over the past two decades, the Brennan Center for Justice and the National Institute on Money in Politics have documented more than a half-billion dollars in spending in state supreme court elections in the Politics of Judicial Elections series. In that time, we’ve covered the transformation of these elections from sleepy low-dollar contests into costly races awash in dark money, threatening the hope of equal justice in America’s courtrooms.
Our new analysis looks at the 2017–18 state supreme court election cycle. While elections during this period broke few of the spending and other records set in recent years, many of the worst features of modern judicial elections appear here to stay. Opaque interest groups running deceptive ads poured money into judicial races in multiple states, outspending the candidates themselves in some instances. In one state, a political party and its allies retaliated against a sitting judge for ruling against her party’s wishes. At the same time, state supreme courts across the country remained strikingly homogeneous compared to the diverse populations they serve.
All this raises alarms for 2020, which is poised to be a big year up and down the ballot, including for judicial races. Historically, state supreme court elections, which 38 states use as part of their system for choosing high court judges, have seen vastly more spending in presidential cycles, and big-money races are already underway (or all but guaranteed) in a handful of battleground states. For example, elections in Ohio, Michigan, and Wisconsin could shape their supreme courts’ ideological balance for years to come. And races in Iowa and North Carolina will give the states’ conservatives, who have recently passed laws to help their allies reach the bench, new opportunities to shape the courts via the ballot box. Wisconsin’s 2019 election already attracted more than $8 million in spending.
Key Findings from the 2017–18 Judicial Election Cycle
Special interest groups maintained their outsize role in supreme court elections. Spending by interest groups, rather than by the candidates or political parties, accounted for 27 percent of all supreme court election spending. By comparison, over the last 20 years, congressional elections have never seen interest groups account for more than 19 percent of all spending in a cycle. The share of outside spending in this cycle’s supreme court races was down from a high of 40 percent in 2015–16, but it continued to far outstrip any cycle prior to the U.S. Supreme Court’s 2010 Citizens United decision, which set the stage for the rapid growth of interest group spending.
In some states, interest groups vastly outspent the candidates they supported. In Arkansas and West Virginia, groups accounted for at least two-thirds of every dollar spent. This is consistent with other recent cycles, where a handful of states saw interest groups take over their supreme court races in a similar way.
Interest group spending was almost entirely nontransparent. Eight of the 10 biggest spenders did not disclose the true sources of their funds in a way that would allow voters to know who was trying to influence the election and future court decisions. This is in line with our 2015–16 analysis, which found that 82 percent of all outside spending that cycle was nontransparent.
The biggest source of dark money was likely the Judicial Crisis Network, which also led the fight to seat Brett Kavanaugh on the U.S. Supreme Court. The conservative group, founded in 2005 to boost federal judicial nominations of Republican presidents, boasted of spending $10 million in 2018 to seat Justice Kavanaugh. An analysis of IRS filings, state disclosures, and TV spending estimates suggests that more quietly that same year, the group likely put at least $3.8 million toward state court elections.
States made meager progress toward achieving more diverse supreme court benches. A recent Brennan Center study found that state supreme courts fall far short of reflecting the communities they serve – for example, people of color make up nearly 40 percent of the U.S. population but only 15 percent of state supreme court justices nationwide. Voters elected four new justices of color to the bench in 2018, but no state with an all-white bench added a justice of color. As a result, 25 states began 2019 with an all-white supreme court.
It is hard to overstate the importance of state supreme court elections. State supreme courts sit atop judicial systems that hear 95 percent of all cases filed in the United States. State high courts decide more than 10,000 cases on the merits annually, compared to the 72 opinions the U.S. Supreme Court issued in its 2018 term. In just the past two years, state high courts struck down the death penalty, authorized businesses to discriminate against same-sex couples, preserved reproductive rights, capped damages in medical malpractice suits, and limited partisan gerrymandering. These courts, and the elections that determine who sits on them, have a profound impact on the lives and freedoms of many.
Yet the politicization of supreme court elections continues to undercut the ability of these powerful bodies to be fair and independent. In many states, judges routinely hear cases involving major campaign supporters, and the growth of opaque interest groups has made these conflicts of interest potentially larger and less likely to come to light. A body of research suggests these conflicts and other election-year pressures impact judicial decision-making, leading to better outcomes for big donors and political supporters and worse outcomes for criminal defendants. Recent research by the Brennan Center also suggests the financial demands of modern supreme court elections may be one reason why elections have rarely been a path to the bench for candidates of color.
To foster the fairness and independence of the courts that our democracy requires, states must insulate them from these pressures, limit conflicts of interest, and build benches that better reflect the public they serve. There are clear steps states can take, from strengthening the ethics rules that bind judges to more fundamental changes to how states pick judges. These solutions are discussed in greater detail below and in recent Brennan Center reports.
Whatever path states take in pursuit of judicial fairness and independence, it is becoming clear that, without reform, modern judicial elections risk putting these values forever out of reach.