“SOONER OR LATER,” warned Alexis de Tocqueville in 1835, judicial elections “will have dire results”. One day, he continued, “it will be perceived that by so diminishing the independence of the magistrates, not only has judicial power been attacked, but the democratic republic itself”. His warning was not heeded: most states elect judges to at least some courts.
Today’s opponents of judicial elections cite two main fears. The first is that judges may rule more favourably to those who contributed to their campaigns. Cognisant of such concerns, in 2015 Chief Justice John Roberts joined the Supreme Court’s liberals to uphold a state ban on judges personally soliciting campaign donations. “Judges are not politicians,” wrote Mr Roberts, “even when they come to the bench by way of the ballot…A state may assure its people that judges will apply the law without fear or favour—and without having personally asked anyone for money.”
The second worry is that judges will impose harsher sentences to curry favour with voters: “Hang ‘em high!” is a catchier campaign slogan than “Impartially apply the law to each case even when doing so produces unpopular results.” A new working paper by Christian Dippel of UCLA Anserson and Michael Poyker of Columbia Business School measures this. Several studies have shown that judges tend to impose more punitive sentences when facing re-election, but those studies have come from just three states (Kansas, Pennsylvania and Washington). The authors added evidence from eight more. In only one of the eight (North Carolina) did they find that judges become more punitive when they know they will be facing voters shortly.
In four of the 11 states where there is solid evidence, then, judges tend to sentence defendants convicted of serious crimes more harshly shortly before they file for re-election than they do at the beginning of their terms. The authors focused on serious crimes such as murder, rape and assault “because these are more visible to voters”. People tend to prefer judges who protect society from killers to those who protect it from jaywalkers.
The authors hypothesise that the more competitive state judicial elections are, the more likely judges are to impose harsher sentences. In states with uncompetitive judicial elections, by contrast, “judgeships appear to be viewed as positions that should be obtained by appointment, never mind the electoral rules,” and judges apply the law more consistently.
Unfortunately judicial elections are only growing more competitive. In the 2015-16 election cycle, Pennsylvania set a national record for money spent in state supreme-court elections—$21.4m for three seats, most of which the candidates raised themselves. North Carolina saw more money spent ($5.4m for a single seat, most of it from outside groups) than any state other than Pennsylvania. Kansas set a state spending record ($2.1m for five seats) and Washington also saw $2.8m spent for three seats. Much of that money came from unknown sources; the Brennan Centre, a think-tank and advocacy group, could trace just 18% of the $27.8m of outside group spending on state supreme-court races in 2015-16. That cycle set a record for justices elected in $1m-or-more races (27). That is good news for political consultants and campaign measures, but not for justice.