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The Politics of Judicial Elections, 2019–20

Summary: Special interests are spending more than ever on state high court races. Here’s why.

Published: January 25, 2022
Wisconsin state capitol building, which houses the state's supreme court

In 2019–20, state supreme court elec­tions attrac­ted more money — includ­ing more spend­ing by special interests — than any judi­cial elec­tion cycle in history, posing a seri­ous threat to the appear­ance and real­ity of justice across the coun­try.

Thirty-eight states use elec­tions to choose the justices who sit on their highest courts, which typic­ally have the final word in inter­pret­ing state law. Over the past two decades, the Bren­nan Center has tracked and docu­mented more than $500 million in spend­ing in these races. foot­note1_pzq3jxf 1 The $500 million figure includes elec­tions that took place from 1999 through 2018. All reports in the Polit­ics of Judi­cial Elec­tions Series are avail­able at https://www.bren­nan­cen­­cial-elec­tions. Our analysis finds that the 2019–20 elec­tion cycle was the most expens­ive ever (adjus­ted for infla­tion). In fact, no other cycle comes close to the nearly $100 million that big donors and interest groups spent to influ­ence the compos­i­tion of state supreme courts in 2019–20.

This unpar­alleled spend­ing speaks to the power and influ­ence of state supreme courts, which often fly below the public’s radar. While voters were at the polls on Elec­tion Day in 2020, for example, the Missouri Supreme Court announced that it would not hear John­son & John­son’s appeal of a $2 billion verdict against it in a products liab­il­ity suit. foot­note2_mrxswm0 2 “Missouri Supreme Court Rejects John­son & John­son’s Appeal of $2.21 Billion Talc Verdict,” St. Louis Post Dispatch, Novem­ber 3, 2020,­ness/local/missouri-supreme-court-rejects-john­son-john­son-s-appeal-of-2–12-billion-talc-verdict/article_a50e8269-b5ea-5ad2-bbe0-ff2721aa963a.html. Massive stakes like these, for both busi­ness interests and trial lawyers, are what fueled some of the first high-cost judi­cial races two decades ago. foot­note3_8yq90ox 3 Deborah Gold­berg et al., The New Polit­ics of Judi­cial Elec­tions 2004, Bren­nan Center for Justice, 2004, 24–25, https://www.bren­nan­cen­–08/Report_New_Polit­ics_Judi­cial_Elec­tions_2004.pdf.

The current polit­ical moment only height­ens the stakes. In 2020 alone, state supreme courts ruled on everything from ballot access and chal­lenges to elec­tion results to governors’ emer­gency orders concern­ing the Covid-19 pandemic. Look­ing ahead, state courts are play­ing a crucial role in the ongo­ing redis­trict­ing cycle, includ­ing resolv­ing disputes about racial discrim­in­a­tion and partisan gerry­man­der­ing and even draw­ing elect­oral maps in some states.

The 2019–20 elec­tion cycle, however, was less an aber­ra­tion than an escal­a­tion. foot­note4_9idamwx 4 While this report covers the 2019–20 cycle, the next cycle is already under­way. Pennsylvania held the first state supreme court elec­tion of the 2021–22 cycle and it illus­trated many of the same themes, includ­ing spend­ing by special interest groups and mislead­ing attack ads. Angela Coulou­mbis and Dani­elle Ohl, “Power­ful Special Interests Are Pour­ing Millions into the 2021 Pa. Supreme Court Race,” Spot­light PA, Octo­ber 26, 2021,­­tion-2021-biggest-donors/. A newly enlarged conser­vat­ive major­ity on the U.S. Supreme Court, for example, only makes it more likely that state courts and state consti­tu­tions will be a focal point as an altern­at­ive venue for protect­ing rights and resolv­ing high-profile disputes. Going forward, more people and more interest groups — many with deep pock­ets — will almost certainly be paying close atten­tion to who sits on these courts and how they reach the bench.

Key Find­ings

  • State and national spend­ing set new records. This cycle set an over­all national spend­ing record of $97 million, 17 percent higher than the previ­ous record set in 2004 (adjus­ted for infla­tion). It also nearly doubled the record for spend­ing in a reten­tion elec­tion, in which a sitting justice stands for an up-or-down vote rather than face an oppon­ent, with a $9.9 million elec­tion in Illinois. State spend­ing also hit new highs. North Caro­lina saw its most expens­ive state supreme court race ever, as did Wiscon­sin in 2019 — before break­ing that record again in 2020.

  • Outside special interests spent more than ever. Interest groups set another record this cycle, spend­ing an estim­ated $35 million on ads and other elec­tion activ­it­ies, inde­pend­ent of any amounts they contrib­uted to the candid­ates them­selves. This peak surpassed the previ­ous high-water mark set in 2015–16 and more than doubled interest group spend­ing in every prior cycle. Interest groups accoun­ted for 36 percent of all spend­ing in 2019–20 and spent more money than the candid­ates them­selves in Michigan and Wiscon­sin. Interest groups on the left came closer than they have in previ­ous cycles to match­ing those on the right, spend­ing $14.9 million compared to $18.9 million by conser­vat­ive groups.

  • The biggest spend­ers included both long-time play­ers and newcomers. As in other recent cycles, the Judi­cial Fair­ness Initi­at­ive (JFI) of the Repub­lican State Lead­er­ship Commit­tee (RSLC) was active in the most races, spend­ing $5.2 million across five states. At least $1 million of the RSLC’s budget came from the Judi­cial Confirm­a­tion Network (also known as the Judi­cial Crisis Network), the dark money group that also spent millions to put Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett on the U.S. Supreme Court and that has peren­ni­ally been one of the biggest spend­ers in state supreme court elec­tions. foot­note5_tkee­lyz 5 Mari­anne Levine, “Judi­cial Crisis Network Launches $3 Million Ad Campaign for Barrett,” Politico, Septem­ber 26, 2020,­cial-crisis-network-barrett-ad-campaign-422052. For an analysis of the Judi­cial Crisis Network’s role in the previ­ous state supreme court elec­tion cycle, see Douglas Keith, Patrick Berry, and Eric Velasco, The Polit­ics of Judi­cial Elec­tions, 2017–18, Bren­nan Center for Justice, 2019, 10, https://www.bren­nan­cen­–12/2019_11_Polit­ics%20of%20Ju­di­cial%20Elec­tions_FINAL.pdf. But new groups entered the fray as well: in Illinois, two in-state billion­aires funded $5.9 million in spend­ing by Citizens for Judi­cial Fair­ness (CJF), and in Texas, in-state busi­ness interests, many from the oil industry, fueled $4.5 million of spend­ing by the newly formed Judi­cial Fair­ness PAC.

At a moment when our demo­cracy is being tested, it is crucial to ask whether modern judi­cial elec­tions leave state supreme courts equipped to play their vital consti­tu­tional role. Courts will need the public’s trust to effect­ively counter anti­demo­cratic forces, yet this uptick in spend­ing gives the public little reason to trust that courts are inde­pend­ent of big donors, or any differ­ent than the polit­ical branches of govern­ment. Indeed, research suggests that elec­tion spend­ing influ­ences judi­cial decision-making — and specific­ally, that judges up for reelec­tion are more likely to rule in favor of their donors and support­ive polit­ical parties. foot­note6_lq28t53 6 Alicia Bannon, Choos­ing State Judges: A Plan for Reform, Bren­nan Center for Justice, 2018, 4, https://www.bren­nan­cen­–08/Report_Choos­ing_State_Judges_2018.pdf.

States have a wide range of tools to mitig­ate the harms docu­mented in this report, includ­ing elim­in­at­ing supreme court elec­tions or limit­ing justices to a lengthy single term in office, provid­ing judi­cial candid­ates with public finan­cing, strength­en­ing disclos­ure rules, and adopt­ing recusal and ethics reforms. The 2019–20 cycle under­scores that the chal­lenges posed by modern supreme court elec­tions are not going away — and that the need for action is urgent.

End Notes