With the death of hero Ruth Bader Ginsburg and the convening of the Supreme Court’s new term, many voters are focused on the Supreme Court. However, each year Americans file more than 100 million cases in state courts, resulting in 95% of judicial decisions taking place at that level. According to the Brennan Center for Justice, a nonpartisan law and policy institute, “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.”
State judicial rulings can only be appealed to the Supreme Court if it agrees that lower court rulings raise Constitutional issues. In the 2019–20 term, 17% of matters heard by the Supreme Court concerned issues raised by state-level rulings. No single federal court had as high a number of cases heard. In other words, state courts matter!
How Do Judges Get Their Seats?
Nationwide, the 344 state supreme court justice seats and approximately 30,000 state judgeships are filled in various ways, including elections, gubernatorial or state congressional appointments, nominating committees or some hybrid method. Depending on the state, judges serve for several-year terms, until age 70 or until retirement.
One thing state supreme courts have in common, sadly, is a lack of diversity. Female judges account for just 37% of state supreme court jurists. Only 11 state supreme court justices identify as LGBTQ+. People of color make up approximately 40% of the U.S. population, but just 15% of state supreme court judges. Since May 2019, 14 of 19 vacancies on state supreme courts were filled, with only three filled by people of color. All-white state supreme courts are in 23 states. As former Ohio Supreme Court Justice Yvette Magee Brown has written, “When the only people of color in a courthouse are in handcuﬀs, the public’s perception of Justice is ‘Just Us.’”
In addition to a lack of racial diversity, judges tend to have homogenous professional backgrounds. According to the right-leaning Cato Institute, judges with prosecutorial backgrounds outnumber those with other law backgrounds by 4 to 1.
Discussing the scarcity of defense-oriented, or what she calls “Bill of Rights” oriented judges, Georgetown Law Professor Abbe Smith argues: “Instead of judges who are nothing more than rubber-stamps for prosecutors, deferring to prosecutors at every step because they believe most defendants in fact guilty or because they dislike defense lawyers, we need judges who are truly neutral and disinterested. Instead of judges who actively assist the prosecution and handicap the defense, we need judges, at the very least, to allow the adversarial system to play out.”
While judges may seem objective, Smith’s research finds that judicial hostility toward the accused surfaces in subtle ways. These include editorial interjections during jury selection, cutting defense attorneys’ time to question potential jurors, disrespecting the defense’s requests during pleading or positions taken during oral arguments, or when the defense asserts a scheduling issue.
State courts, though, don’t only hear criminal cases. Much of what appears before them grows from civil suits between individuals or corporations, issues raised during elections or by lawmaking. The breadth of case types appearing on state court dockets increases the need to elect judges with broad legal experience. This would result in more appropriate decisions and promote more fairness in the system.
Electing partisan justices and Citizens United
This year, 78 of the 344 state supreme court seats are on the ballot. In 30 states, 200 appellate judges are running. Elections are held to fill local trial courts in 26 states, with eight using partisan elections and 18 using nonpartisan elections.
In Texas, judicial selection is completely partisan. This presents multiple problems, not the least of which is an undermining of the public’s trust that justice is “blind.” According to The Texas Tribune, Texas judges “are required to run as partisans but expected to rule impartially. They are forced to raise money from the same lawyers who will appear before them in court. And in their down-ballot, low-information races, their fates tend to track with the candidates at the top of the ticket.”
For the past 25 years, all nine Texas Supreme Court judges have been Republican. Lower state courts are also dominated by Republicans, but last year that began to change. Now seven of the 14 intermediate courts of appeals have Democratic majorities. And in this year’s election, Democrats have a slate of racially diverse candidates with broad legal experience running for Texas Supreme Court seats.
As the public view of judges has grown more jaded, both partisan and nonpartisan judicial elections have seen massive money flow in from local entities and outside groups. During the 2019 election cycle, outside interests matched or outspent the candidates themselves, contributing 27% of election costs. In the 2017-18 non-partisan Wisconsin supreme court elections, outside groups put in $2.6 million for just one supreme court seat. In Arkansas and West Virginia, outside money in court elections accounted for at least two-thirds of every dollar spent.
The Citizens United ruling allows donor information to remain cloaked, making it near impossible to know who is spending what in judicial and other elections. The Brennan Center for Justice reports the dark money group Judicial Crisis Network spent $10 million to boost Neil Gorsuch and more than $3 million to boost Brett Kavanaugh onto the Supreme Court. According to the Brennan Center, JCN is the dominant source of outside dollars influencing state judicial elections. In 2018, the Brennan Center estimates the group spent nearly $4 million in state elections alone.
Even nonpartisan judicial elections bring in money that can raise concerns. In Georgia, for example, candidates raised $1.5 million on their own. Much of that money came from lawyers and law firms that will or are arguing before a judge, once again undermining the perception of unbiased judiciary.
To create a more fair judiciary, we need to pay attention to state judge elections. We need to lobby our state legislatures to change the way judges are selected. The Brennan Center, which has extensively studied the issue, finds that the best way to select judges is through nonpartisan commissions with a mandate to recruit judges from diverse legal backgrounds who reflect the population they serve.
But that is not the system most states currently employ. A change to those practices, however, can begin this year with your vote. Study the candidates in your state, and vote for those with diverse backgrounds and identities. Query your state legislatures to explore better ways to fill the judiciary. The judiciary, like all of government, is ours, as are its outcomes. Your vote can make change for the better! Vote!
Photo credit: “Albert V Bryan Federal District Courthouse – Alexandria Va – 0011 – 2012-03-10” by Tim Evanson is licensed under CC BY-SA 2.0
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