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9 The Judiciary

Attorney Edward Clancy argues his case before a Special Session of the New Hampshire State Supreme Court at Saint Anselm College, in Manchester, New Hampshire.

LEARNING OBJECTIVES

· To explain that state courts are organized into two tiers.

· To describe how structural reforms have tried to make the courts more effective.

· To list the five methods for selecting judges.

· To describe some of the factors that influence judicial decision making.

· To understand that judicial federalism is related to increased capability and judicial activism in many state courts.

· To discuss efforts to reform state courts.

In the case of Barnes v. Glen Theatre Inc. (1991), a prudish U.S. Supreme Court ruled that nude dancing, being dangerous to “order and morality,” is not protected as free expression under the First Amendment of the U.S. Constitution. This case, which arose in Indiana, was

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tried in the federal courts under national constitutional law. But in Ohio, strippers may freely cavort in their full birthday suits; patrons, however, are barred from touching the “naughty bits” at risk of six months in jail and a $1,000 fine. 1

And in Boston, Massachusetts, a city once known for banning all manner of objects and activities deemed to be immoral, totally naked women grind, bump, and pirouette at tacky cabarets, fully confident that their activity is legal. In Massachusetts, the voluntary display of a naked body has been protected under the state constitution as a form of free expression since the state supreme court ruled it so in 1984. 2

State supreme courts sometimes act as policy makers. Even as the U.S. Supreme Court has experienced a conservative majority for the past couple of decades, state courts have become more open to individuals and groups advocating causes such as civil rights, free speech, and freedom of expression. All sorts of conflicts and problems find their way to state and local courts, from

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the profound (abortion rights) to the profane (nude dancing). Decisions of state courts have a weighty “impact on the overall distribution of wealth and power in the United States and on the daily well-being of the citizens.” 3 Courts at this level are busy; 99 percent of the nation's cases are filed in state courts—approximately 100 million cases a year! New York State's cases alone outnumber those filed in all federal courts by a factor of 9 to 1. Many of

the state courts are innovative in their decision making and administration; in addition, all are far more accessible to the people and responsive to their concerns than are the federal courts. Surveys show that Americans have greater confidence in their state courts than in the legislature or governor. 4

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As the third branch of government, the judiciary is the final authority on the meaning of laws and constitutions and the ultimate arbiter of disputes between the executive and legislative branches. It also makes public policy through rulings on questions of political, social, and economic significance and may serve as the last chance for minority interests to defend themselves from the decisions of the majority. As noted in Chapter 3 , state courts have become more active policy makers in recent years and have increasingly based important decisions on state constitutions rather than on the national constitution. As with the other branches of state government, their structures and processes have been greatly reformed and modernized. In our lifetimes, nearly all of us will personally experience the judicial branch as direct participants (juror, plaintiff, defendant, or witness). At times, the courts are more accessible to us than are the other branches of government. Disputes that cannot be resolved through ordinary legislative, executive, and political processes frequently wind up before a judge as litigation.

The work of the fifty state court systems is divided into three major areas: civil, criminal, and administrative. In civil cases , one individual or corporation sues another over an alleged wrong. Occasionally, a governmental body is party to a civil action. Typical civil actions are divorces, property disputes, and suits for damages arising from automobile or other accidents. Criminal cases involve the breaking of a law by an individual or a corporation. The state is usually the plaintiff; the accused is the defendant. Murder, assault, embezzlement, and disorderly conduct are common examples. Administrative cases concern court actions such as probating wills, revoking driver's licenses, or determining custody of a child. Some administrative cases involve administrative law judges and quasi- judicial (less formal) proceedings. A government entity is usually a party to an administrative case.

State courts adjudicate (resolve disputes and administer justice) by interpreting state statutes, the state and federal constitutions, and common law . In developing and

deciphering the common law, courts are concerned with the legal rules and expectations that have developed historically through the citizens' custom, culture, and habits, and that have been given standing through the courts' decisions rather than from statutes. The most important applications of common law today concern enforcing contracts (contract law), owning and selling property (property law), and establishing liability for death or injuries to people, as well as damage to property (tort law).

( civil case A case that concerns a dispute involving individuals or organizations. criminal case A case brought by the state against persons accused of violating a law. administrative case Usually, a case in which a government agency applies rules to settle a legal dispute. common law Unwritten law based on tradition, custom, or court decisions. )

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The Structure of State Court Systems

State courts have evolved in response to changes in their environment. In colonial days, they developed distinctively, influenced by local customs and beliefs. Because of a shortage of trained lawyers and an abiding distrust of English law, the first judges were laymen who served on a part-time basis. It did not take long for the courts to become overwhelmed with cases: case overloads were reported as long ago as 1685. 5 More than three centuries later, case backlogs still plague our state judiciaries.

As the population and the economy grew, so did the amount of litigation. Courts expanded in number and in degree of specialization. However, their development was not carefully planned. Rather, new courts were added to existing structures. The results were predictably complex and confusing, with overlapping, independent jurisdictions and responsibilities.

For instance, Chicago offered an astounding array of jurisdictions, estimated at one time to number 556. 6 State court systems were beset as well by a host of other serious problems, including underfunding, administrative inefficiency, congestion, and excessive delays. In short, the American system of justice left much to be desired.

The organization of the state courts is important because it affects the quality and pace of judicial decisions and the access of individuals and groups to the legal system. It also influences how legal decisions are made. An efficiently organized system, properly staffed and administered, can do a better job of deciding a larger number of cases than a poorly organized system can. Court structure is of great interest to those who make their living in the halls of justice—lawyers, judges, and court staff. It is also an issue of concern to citizens who find themselves in court.

THE TWO TIERS OF COURTS

Most states today have a two-tiered court structure: trial courts and appellate courts. There are two types of trial courts: those of limited jurisdiction and major trial courts. Each tier, or level, has a different jurisdiction, or range of authority. Original jurisdiction gives courts the power to hear certain types of cases first, in contrast to appellate jurisdiction, which grants the courts the power to review cases on appeal after they have been tried elsewhere. Trial courts, which comprise the lower tier, include (1) minor courts of limited jurisdiction and

(2) major trial courts of general jurisdiction.

Limited jurisdiction trial courts , also known as special trial courts, handle minor, specialized cases, such as those involving juveniles, traffic offenses, and small claims. Most states have three to five courts of limited jurisdiction, with names that reflect the type of specialized case: traffic court, police court, probate court, municipal court, and so on.

Criminal cases here are usually restricted by law to misdemeanor violations of municipal or county ordinances that are punishable by a small fine, a short jail term, or both. Additional courts of limited jurisdiction, sometimes called “boutique” or “problem-solving” courts, have been created to deal with special types of cases or circumstances. For example, all states have created drug courts, with the dual aims of processing drug-related offenses more efficiently and reducing the recidivism rates of drug offenders on probation or parole.

Domestic violence and mental health courts are common as well. “Water courts” in Colorado and Montana hear disputes over water rights. In San Francisco, “neighborhood courts” grant individuals charged with minor offenses the option of accepting “restorative justice” in exchange for having their record expunged. For instance, a graffiti “artist” might be required to clean up his artwork and apologize at a neighborhood meeting. 7 Illinois,

Texas, Colorado, and other states have created special “veterans courts” to hear minor offenses charged to Iraq and Afghanistan war vets who have had scrapes with the law.

( limited jurisdiction trial courts Those courts with original jurisdiction over specialized cases such as juvenile offenses or traffic violations. )

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Present in almost all states are small claims courts, which offer a relatively simple and inexpensive way to settle minor civil disputes without either party having to incur the financial and temporal burdens of lawyers and legal procedures. Small claims courts are usually divisions of county, city, or district trial courts. In cases before small claims courts, the plaintiff (the person bringing the suit) asks for monetary recompense from the defendant (the individual or firm being sued) for some harm or damage. Claims are limited to varying amounts, usually around $1,000. The proceedings are informal. Each party presents to a judge the relevant facts and arguments to support his side. The party with the preponderance of evidence on his or her side wins. Most disputes involve tenant-landlord conflicts, property damage, or the purchase of goods (e.g., shoddy merchandise or the failure of a customer to pay a bill).

The plaintiff usually wins in small claims court. About half the time, defendants do not show up to plead their case and thereby lose by default. In contested cases, plaintiffs win around 80 percent of the time. Unfortunately for the plaintiff, winning a case is often easier than collecting from the defendant. It's the plaintiff's responsibility to get written court permission to extract the amount due from the debtor's wages, bank account, or other assets, and to retain the local sheriff or constable to deliver and enforce the court order.

The second type of trial court is the major trial court , which exercises general authority over civil and criminal cases. Most cases are filed initially under a major trial court's original jurisdiction. However, trial courts also hear cases on appeal from courts of limited jurisdiction. Major trial courts are often organized along county or district lines. Their names (circuit courts, superior courts, district courts, courts of common pleas) vary widely.

The upper tier of the two-tiered state court system consists of appellate courts: supreme courts (sometimes called “courts of last resort”) and, in most states, intermediate appellate courts. Oklahoma and Texas have two supreme courts: one for criminal cases and the other for civil disputes. Forty states have intermediate appellate courts. Alabama, Oklahoma, Oregon, Texas, Pennsylvania, and Tennessee have two, typically one each for criminal and civil cases. Most intermediate appellate courts are known as courts of appeals. Their work generally involves cases on appeal from lower courts. Thus, these courts exercise appellate jurisdiction by reviewing a trial court's interpretation and application of the law. By contrast, state supreme courts have original jurisdiction in certain types of cases, such as those dealing with constitutional issues, as well as appellate jurisdiction.

( major trial court )

( Court of general jurisdiction that handles major criminal and civil cases. supreme court The highest state court, beyond which there is no appeal except in cases involving federal law. intermediate appellate court A state appellate court that relieves the case burden on the supreme court by hearing certain types of appeals. )

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Intermediate appellate courts represent the most notable change in the landscape of state courts during the past three decades. They are intended to increase the capability of supreme courts by reducing their caseload burden, speeding up the appellate process, and improving the quality of judicial decision making. The weight of the evidence points to moderate success in achieving each of these objectives. Appellate case backlogs and delays have been somewhat reduced, and supreme court justices are better able to spend an appropriate amount of time on significant cases. Counteracting this positive trend, however, is the growing number of mandatory appeals, such as for death penalty cases, which can make up more than half of the caseload.

If a state supreme court so chooses, it can have the final word on any state or local case except one involving a federal constitutional question, such as First Amendment rights. Some cases can be filed in either federal or state court. For example, a person who assaults and abducts a victim and then transports her across a state line can be charged in state court with assault and in federal court with kidnapping. Some acts violate nearly identical federal and state laws; possession or sale of certain illegal drugs is a common example.

Other cases fall entirely under federal court jurisdiction, such as those involving treason, mail theft, or currency law violation.

After being a couple for twelve years, two gay men receive their marriage certificate in Boston, Massachusetts.

Thus, there exists a dual system of courts that is sometimes referred to as judicial federalism. Generally, state courts adjudicate, or decide, matters of state law, whereas federal courts deal with federal law. The systems are separate and distinct. In some instances, however, there is jurisdictional overlap and even competition for a case.

Following the arrests of Beltway snipers John Muhammad and Lee Malvo, Virginia,

Maryland, and the U.S. Department of Justice all sought to bring the multiple murder case to trial first (six victims were killed in Maryland, three in Virginia, and one in the District of Columbia; Virginia was given the honor of first prosecution).

Although state courts cannot overturn federal law, they can base certain rulings on the federal constitution. Recently, state courts have decided cases governed by both state and federal laws in hate crimes, freedom of speech, the right to die, and gay rights. It is very unusual for a case decided by a state supreme court to be heard by the U.S. Supreme Court or any other federal court. Even if such a review is done, the U.S. Supreme Court usually upholds the state high court decision. For instance, in 2004, the U.S. Supreme Court let stand a Massachusetts

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Supreme Court decision upholding the right of gay couples to marry. 8 An important

exception to the custom occurred in the aftermath of the 2000 presidential election, when the U.S. Supreme Court overturned a Florida Supreme Court decision that had ordered a recount of ballots in three counties. The intervention of the nation's highest court in state election affairs effectively awarded the presidency to George W. Bush.

STRUCTURAL REFORMS

Although the two tiers of state courts appear to represent a hierarchy, in fact they do not. Courts in most states operate with a great deal of autonomy. They have their own budgets, hire their own staff, and use their own procedures. The decisions of major and specialized trial courts usually stand unchallenged. Only around 5 percent of lower-court cases are appealed, mainly because great expense and years of waiting are certain to be involved.

Unified court systems consolidate the various trial courts with overlapping jurisdictions into a single administrative unit and clearly specify each court's purpose and jurisdiction. The aim of this arrangement, which includes centralized management and rulemaking, is to make the work of the courts more efficient, saving time and money and avoiding confusion. Instead of a system whereby each judge runs his or her own fiefdom, such responsibilities as rulemaking, recordkeeping, budgeting, and personnel management are standardized and centralized, usually under the authority of the state supreme court or the chief justice.

Centralization relieves judges from some of the mundane tasks of day-to-day court management so that they can concentrate on adjudication. Additional efficiencies are gained from offices of court administration. Court administration involves actively managing, monitoring, and planning the courts' resources and operations.

Information technology is enabling tremendous improvements in the way the courts manage criminal cases. Missouri's court automation initiative transfers data from forty-nine circuit and appellate court case management systems to a statewide database. Such case integration speeds up case processing and reduces court costs. 9

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Responsiveness to the public is also growing. An increasing number of state courts are electronically disseminating court documents; judicial rulings; speed and efficiency measures; and general information such as instructions for jury duty, maps showing directions to the courthouse, and answers to commonly asked questions about the courts. 10 Some display photographs and biographies of judges, many permit interested citizens to ask

questions via e-mail, and others even provide performance evaluations of judges and broadcast cases live over the Internet. (See Internet Resources at the end of this chapter.)

Despite consolidation and centralization, court structures and processes continue to vary widely among the states. Figure 9.1 shows the complexity of the New York state court system. Generally, the most modern systems are found in the “newer” states, including Alaska and Hawaii, whereas some of the most antiquated are situated in southern states, among them Arkansas and Georgia.

FIGURE 9.1 Complexity and Simplicity in State Court Systems

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How Judges Are Selected

The quality of a state court system depends heavily on the selection of competent, well- trained judges. According to the American Bar Association (ABA), the leading professional organization for lawyers, judges should be chosen on the basis of solid professional and personal qualifications, regardless of their political views and party identification. Judges should have “superior self-discipline, moral courage, and sound judgment.” 11 They should be good listeners. They should be broadly educated and professionally qualified as lawyers (though Arizona, New Mexico, New York, Texas, and Utah have a large number of non-law- degreed judges 12 ). An appellate or general trial court judge should also have relevant experience in a lower court or as a courtroom attorney.

For a great many years, however, controversy has swirled around the selection of state judges. Should they be elected by popular vote? Should they be appointed by the governor? By the legislature? Many critics insist that judicial selection be free from politics and interest group influences. Others claim that judges should regularly be held accountable to a majority of the voters or to elected officials for their decisions.

The conflict between judicial independence and accountability is manifest in the five types of selection systems used in the states: legislative election, partisan popular election, nonpartisan popular election, the merit plan, and gubernatorial appointment. Most states use a single selection system for all appellate and major trial court judges. The others take separate approaches to selecting judges, depending on the tier. Figure 9.2 shows the presence of these selection techniques for appellate and major trial courts. Some states have rather elaborate systems that defy simple categorization

LEGISLATIVE ELECTION

In South Carolina and Virginia, the legislature elects judges by majority vote from among announced candidates. Not surprisingly, a large majority of judges selected under this plan have been former legislators (in South Carolina, the proportion once approached 100 percent). 13 In these two states, a judgeship is viewed as a highly valued reward for public service and a prestigious cap to a legislative career.

Few people other than legislators approve of legislative election. Indeed, the method is open to criticism. The public has no role in either choosing judges or re-electing them, so democratic accountability is minimal. The judges may be independent, but because the

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major criterion for selection is service as a legislator, they often lack other qualifications. Legislative service has little connection to the demands of a judgeship.

POPULAR ELECTION

Judges on one or more courts face elections in thirty-eight states. Some are listed on the ballot by party identification; others are not. In theory, elections

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maximize the value of judicial accountability to the people. Judges must run for office on

the same ticket as candidates for other state offices. Like other candidates, they must raise and spend money for their election campaigns and deal publicly with political issues.

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FIGURE 9.2 State Appellate and Major Trial Court Selection Plans

Partisan Popular Election This plan enjoyed widespread popularity during the Jacksonian era as a way to create a judiciary answerable to the voters. Most of the partisan election states are located in the South. In theory, partisan elections maximize the value of judicial accountability to the voters.

Nonpartisan Popular Election This plan won favor during the first half of the twentieth century, when reformers sought to eliminate party identification in the election of judges and certain other officials in state and local government. Political parties are prohibited from openly taking sides in nonpartisan judicial elections. In reality, they sometimes play a covert role in such contests. The vast majority of judges have a political party preference. Most list it in their official biographies that are available to interested voters during campaigns. One disadvantage of nonpartisan elections is that they tend to depress voter

participation because incumbent judges are less likely to be challenged; another is that party identification is an important voting cue for many citizens.

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The Problems with Popular Elections It is worth observing that electing judges is virtually unknown in the rest of the world, where they are appointed or selected through merit systems. Voter turnout is very low in most judicial elections, whether partisan or nonpartisan. This fact is a major criticism of both methods of electing judges: The winners may not be truly accountable to the people, which is the principal advantage commonly associated with elections. Low rates of voter interest and participation frequently combine with low-key, unexciting, and issueless campaigns to keep many incumbent judges on the bench as long as they run for re-election. One study indicates that fewer than 10 percent are

defeated. 14 Still, this is comparable to state legislative races involving an incumbent.

Recent research suggests that even nonpartisan judicial elections encourage state supreme court justices to align their decisions with public opinion. 15 Other research finds that a state electorate can be mobilized by engaging candidates, distressing events, controversial issues, or cases with emotional content. 16 Judges today seem increasingly vulnerable, particularly in partisan election states in which the voters' views on crime and punishment are harsher than those of the judge. 17 Taken together, these research findings indicate that judicial races tend to elevate judicial accountability over independence.

Two problems have become increasingly troublesome: the politicization of judicial races and the creeping realization that campaign donations influence decisions from the bench. The ABA Code of Judicial Conduct forbids judicial campaigning on legal issues, but this prohibition is increasingly ignored in close contests and in elections in which crime-related concerns, such as the death penalty or an accused murderer freed on a legal technicality, claim voters' attention. Moreover, federal courts have ruled that campaigning on judicial issues and decisions is protected speech. As in other electoral contests, negative campaigning is on the rise in judicial elections. Judicial candidates today energetically sling mud at their opponents for allegedly letting drug abusers free, being corrupt, sympathizing with terrorists, and acting soft on crime. Several states have tried to restrict aggressive judicial politicking through ethics rules and other limitations. When challenged in federal or state courts, however, such restrictions are usually overturned as intrusions on the candidates' First Amendment rights to free speech. 18

Even more serious is the problem that occurs when judges elected on a partisan ballot are accused of pandering to special interests during election campaigns and paying back campaign support through favorable court decisions. In Texas, for instance, supreme court justices deciding a $10.5 billion judgment against Texaco in favor of Pennzoil were criticized for accepting huge campaign contributions from both companies. In some recent Ohio

Supreme Court decisions, all seven judges accepted money from lawyers for the plaintiffs or defendants. 19 Nonpartisan elected judges have been open to similar charges, especially because political action committees (PACs) have boosted their contributions to candidates for state court judgeships. Research has found systematic empirical evidence that judicial decisions have followed dollars. Similar conclusions have been drawn from case study research on judicial decision making in Alabama, Ohio, and Georgia. 20 Elected judges

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themselves are troubled by the role of money in judicial elections. As California Chief Justice

Otto Kaus remarked, “You cannot forget the fact that you have a crocodile in your bathtub. You keep wondering whether you're letting yourself be influenced, and you do not know.” 21

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In addition, popular elections are criticized for the growing amount of money necessary to win a state judgeship. As in other political contests, money talks: The candidate who spends the most is likely to win the election. 22 In some cases, the implication is that judges have sacrificed their independence and professionalism for crass electoral politics. Following the trend set in executive and legislative contests, judicial campaign spending for state supreme court candidates on TV ads alone exceeded $16.1 million in 2009–2010, including $5 million in Michigan alone. 23 In a heated 2004 race for an Illinois state supreme court seat, two candidates spent $4.5 million each. The geographical district in which they ran had experienced high-profile tort litigation, including a $10.1 billion product liability award against Phillip Morris Tobacco Company.

The largest campaign contributors are usually trial lawyers, corporations, and other groups with an interest in judges' decisions, such as labor unions; business interests desiring to limit the amount of jury awards for tort litigation; the U.S. Chamber of Commerce; and various professions, such as insurance or medicine. 24 A supreme court incumbent was brought down in West Virginia largely through the efforts of a corporate CEO who had a lawsuit pending before the court. In “a race noted for money and malice,” 25 the CEO provided some $2.3 million to the incumbent's “friendlier” opponent. The CEO in question, Don Blankenship of Massey Energy, had shamelessly vacationed in Monte Carlo with one sitting justice whom he favored in the election while the case was under appeal. 26 Similarly, enthusiastic spending by business interests angry about large medical malpractice awards generated more than $1.4 million to unseat the first Wisconsin Supreme Court incumbent in forty years. 27

It looks as though judges running for election are forfeiting their independence in certain legal disputes while offering accountability only to the highest bidders instead of to the general public. 28 If justice is indeed for sale or rent, this is highly disturbing; neither independence nor accountability is achieved, and faith in the legal system is being eroded. 29 According to the president of the Ohio State Bar Association, “The people with money to spend who are affected by court decisions have reached the conclusion that it's a lot cheaper to buy a judge than a governor or an entire legislature, and he can probably do a lot more for you.” 30 This sentiment is supported by research showing a positive correlation between campaign contributions and judges' decisions. 31

If it is unethical for a judge to rule on a case in which he or she has accepted money from one or more of the interested parties, then it would be difficult to bring together enough judges to hear cases in some states. Increasingly, the general sentiment is that judges should be both qualified and dignified and that elections do not further either objective. In 2011, Wisconsin joined New Mexico and North Carolina to launch public financing for judges'

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campaigns to help contain spiraling costs. But state restrictions and penalties for false

campaign advertising are seriously threatened by the U.S. Supreme Court's Citizens United decision on free speech, noted above. 32 However, the U.S. Supreme Court ruled, in an important 2009 case involving the West Virginia saga mentioned earlier, that justices must recuse or disqualify themselves from ruling on cases in which interested or involved campaign donors have spent large sums of money. 33

MERIT PLAN

Dissatisfaction with other methods for selecting judges has led to the popularity of the so- called merit plan. Incorporating elements of gubernatorial appointment and elective systems, the merit plan attempts to provide a mechanism for appointing qualified candidates to the bench while permitting the public to evaluate a judge's performance through the ballot box.

Strongly supported today by almost the entire legal community, the merit plan has been adopted by nearly all of the states that have changed their selection systems. Missouri became the initial adopter in 1940. Another twenty-one states have adopted the merit plan, and others are considering merit selection.

Three Steps Commonly referred to as the Missouri plan, the basic merit plan involves three steps:

1. A judicial nominating commission meets and recommends three or more names of prospective judges to the governor. Members of this bipartisan commission usually include a sitting judge (often the chief justice), representatives chosen by the state bar association, and laypersons appointed by the governor. The nominating commission solicits names of candidates, investigates them, chooses those it believes to be the best- qualified individuals, and then forwards three or more names and their files to the governor.

2. The governor appoints the preferred candidate to the vacant judgeship.

3. A retention election is held, usually after one or two years, in which the newly appointed judge's name is placed before the voters on a nonpartisan, noncompetitive ticket. The voters decide whether the judge should be retained in office. If she is rejected by a majority vote, the judicial nominating commission begins its work anew. Subsequent retention elections may be held every eight or twelve years, depending on the merit plan's provision.

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Various hybrids of the basic plan are also in use. For example, California's plan for choosing appellate judges begins when the governor identifies a candidate for a vacancy on the bench and sends that person's name to the Commission on Judicial Appointments. The commission, composed of two judges and the attorney general, hears testimony regarding the nominee and votes to confirm or reject. The new judge is then accepted or rejected in a retention election in the next regularly scheduled gubernatorial contest. Thus, although the governor appoints, the new judge is subject to confirmation

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by both the Commission on Judicial Appointments and the voters. In New Mexico's

multistage merit plan, a judge is nominated by a commission and appointed by the governor. During the next general election, the judge must run in a partisan election. If he wins, he must run unopposed in a nonpartisan retention election on the next general election ballot.

The object of the merit plan is to permit the governor some appointive discretion while removing politics from the selection of judges. If it works as intended, election or direct gubernatorial appointment is replaced with a careful appraisal of candidates' professional qualifications by an objective commission. The process is intended to ensure both the basic independence of judges and their accountability to the people.

The Politics of Merit Selection The merit plan looks great on paper, but in practice it has not fulfilled its promise. First, it has not dislodged politics from judicial selection. A judgeship is too important a political office in any state ever to be immune from politics. It is a prized job and an important point of judicial access for numerous individuals, firms, and interest groups, especially the powerful state bar association.

Studies of judicial nominating commissions show that politics— partisan or nonpartisan— are rampant in the review and nomination of candidates. 34 For better or worse, the legal profession often dominates the process. Counting the judge who presides over the nominating commission, lawyers make up a majority of the commission in most of the states. Bar association lobbying is often the prime reason that merit plans are adopted in the first place. However, the legal profession is not monolithic in its politics: It is often divided into two camps—plaintiff's attorneys and defendant's attorneys.

Furthermore, the governor's influence can be exceptionally strong. The laypersons he appoints to the nominating commission may hold the judge in awe, but they are there to represent the governor's point of view and sometimes to promote specific candidates or the agenda of the governor's political party. In six states, the majority of commission members are laypersons. The member who is a judge may also respect the governor's preferences, particularly if the judge owes her appointment to that chief executive.

A second criticism of the merit plan is that the procedure intended to ensure judicial accountability to the people—the retention election—rarely generates voter interest and seldom results in the departure of an incumbent judge from office. Turnout in retention elections is normally very low and, on average, favors the incumbent by more than 70 percent. 35 Few incumbent judges have been voted out in retention elections. In most cases, merit selection means a lifetime appointment.

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However, voter backlashes have occurred against judges whose decisions are distinctly out of step with public opinion. In 1986, California Chief Justice Rose Bird and two associate justices were swept from the state supreme court by large margins in retention elections, as voters reacted negatively to a series of supreme court rulings that significantly expanded the rights of the accused and of convicted felons. Bird had voted to overturn all sixty-one capital-punishment cases brought to the court during a period when polls showed 80 percent of the public supported the death penalty in California. 36

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Ten years later, Tennessee Supreme Court Justice Penny White was rejected in a retention

election for failing to support the death penalty for the perpetrator of a particularly heinous crime. 37 In 2010, Iowa voters tossed out of office three supreme court justices for a ruling that a state gay marriage ban violated the state constitution's equal protection guarantee.

The final charge leveled against the merit plan is that despite reformers' claims to the contrary, it does not result in the appointment of better-qualified judges or of more women and minorities. When background, education, experience, and decision making are taken into account, judges selected through the merit plan are comparable with those selected through other plans. A large majority are white males. Most leave private practice for the bench and stay there until retirement. And a substantial majority were born, raised, and educated in the state in which they serve.

GUBERNATORIAL APPOINTMENT

All gubernatorial appointment states are former colonies, reflecting the early popularity of the plan. As a method per se, gubernatorial appointment rates fairly high on independence because the judge is directly appointed without an election, but it is weak on accountability because the judge is beholden to only one person for his or her job.

Although only a handful of states formally recognize it, gubernatorial appointment is in fact the most common method for selecting a majority of appellate and major trial court judges in the United States. Judges in states with popular elections or merit plans often resign or retire from office just before the end of their term. 38 Under most state legal systems, the governor has the power to make interim appointments to vacant seats until the next scheduled election or the commencement of merit-plan selection processes. The governor's temporary appointee then enjoys the tremendous advantage of running as an incumbent for the next full term. Gubernatorial appointment is also used to replace a judge who dies before the expiration of the term.

What criteria does a governor apply in making appointments to the bench? Political considerations usually come first. The governor can use the appointment to reward a faithful legislator, shore up support in certain regions of the state, satisfy the demands of party leaders and the state legal establishment, or appeal to women's groups or to minority groups. 39

WHICH SELECTION PLAN IS BEST?

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An ongoing debate endures over which selection plan among the five formal selection systems best achieves a healthy balance of (1) judicial independence from interest groups, attorney organizations, the next election, and other influences and (2) accountability to the people. It is unlikely ever to be settled. Legislative election and gubernatorial appointment probably maximize the value of independence, but may be the least desirable because judges selected under these systems tend to come from a rather specific political occupation (the legislature), and the general public has little opportunity to

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hold them accountable. Judicial accountability is maximized when judges and judicial

candidates must face voters, but few incumbents are defeated in elections. (Perhaps the vast majority of sitting judges are capable and competent.) However, significant policy issues involving the courts can rouse the voters to the polls in certain instances, meaning that elected judges who want to stay on the bench must pay attention to public opinion.

None of the prevalent selection systems produces “better” judges, although gubernatorial appointment is more likely to benefit women than the other selection systems are. 40 And minorities have not done particularly well under any selection plan. African Americans fill about 6 percent of state court seats and Latinos 2.5 percent. 41 Gubernatorial appointments and nonpartisan elections apparently increase the selection opportunities for African American judges, but significant gains probably await development of a larger pool of minority attorneys.

Politics, of course, is what raises all judges to the bench, regardless of the selection method. According to research by political scientists, what matters is the path a judge takes to the bench. Those chosen through elective systems tend to view the judiciary in more political—as opposed to juridical—terms than those who reach the bench through gubernatorial or merit appointment systems. Elected judges also tend to be more activist in their decision making and more attentive to voter concerns close to election time, and they are more likely to dissent from other judges in their opinions than are appointed judges. 42 Voter preferences carry extra weight in a judge's decision making when facing competitive elections, particularly with respect to issues of criminal justice, same-sex marriage, and abortion rights. 43 Those in merit-plan states have less to fear from an angry electorate; they can be guided more by personal ideological preferences and their interpretation of the law. In other words, judges who attain their jobs through electoral politics tend to behave similarly as other elected state officials by emphasizing political, rather than legal, factors in their decision making. 44 The irony is that voters prefer to elect their judges, but they fear that campaign spending influences what judges decide in court. 45

REMOVAL OF JUDGES

Like anyone else, judges can and do break the law or become physically incapable of carrying out their responsibilities. If a judge displays serious deficiencies, he must be removed from the bench. Forty-five states provide for impeachment, wherein charges are filed in the statehouse of representatives and a trial is conducted in the senate. Other traditional means for removing justices include the legislative address and popular recall. In the legislative address, both houses of the legislature, by two-thirds vote, must ask the

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governor to dismiss a judge. Popular recall requires a specified number of registered voters to petition for a special election to recall the judge before her term has expired. Angry Nevada voters attempted to recall six supreme court justices in 2003 for ruling invalid a popular tax-limitation initiative. But these traditional mechanisms are cumbersome and uncertain, and hence, seldom successful.

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Today, states generally use more practical methods to remove judges. Problems related to senility and old age are ameliorated in at least thirtyseven states by a mandatory retirement age (generally seventy years) or by the forfeiture of pensions for judges serving beyond the retirement age. Such measures have the added benefit of opening the courtrooms to new and younger judges, even in situations where advancing age does not impair performance.

Most states have established special entities to address behavioral problems. Courts of the judiciary, whose members are all judges, and judicial discipline and removal commissions, composed of judges, lawyers, and laypersons, are authorized to investigate complaints about judges' qualifications, conduct, or fitness. These entities may reject allegations if they are unfounded, privately warn a judge if the charges are not serious, or hold formal hearings. Hearings may result in dismissal of the charges; recommendation for early retirement; or, in some states, outright suspension or removal. Finally, in some states, chief justices can suspend a lower-court judge indefinitely for misbehavior.

The discipline, suspension, or removal of state court judges is uncommon, but it becomes necessary in all states at one time or another. Judges have been found guilty of drunkenness and drug abuse, sexual misconduct with witnesses and defendants, soliciting and accepting bribes, buying and selling verdicts, taking kickbacks for sentencing teenagers to privately operated detention centers in Pennsylvania, 46 and just about every other kind of misconduct imaginable, including choking a fellow supreme court justice. 47 Sometimes judicial ethics seem to be in short supply. In Rhode Island, a state seldom celebrated as a paragon of political virtue, two consecutive supreme court chief justices vacated the bench when faced with impeachment. One resigned following allegations and testimony that he associated with criminals and had adulterous relations with two women in a Mafia-linked motel, among other things. And another pleaded guilty to using court money to pay for personal expenses, fixing friends' and relatives' speeding tickets, and ordering his secretary to destroy financial records. 48 Alabama chief justice Roy Moore was removed by the Court of Judiciary for defying federal and state court orders to haul away a two-and-a-half-ton Ten Commandments monument he had installed in the state judicial building.

Judicial Decision Making

What factors influence the rulings of state court judges? Why are some courts widely recognized as liberal (California, Hawaii) and others as tough on crime (Arizona, Mississippi)? Why does a prosecutor “judge shop,” preferring to file a case before one judge

rather than another? Isn't justice supposed to be blind, like its symbol of the woman holding the scales?

Judges, alas, are mortal beings like the rest of us. The formalities and legal jargon of the courtroom tend to mask the fact that judges' decisions are no less discretionary and subjective than the decisions of a governor, legislator, or agency head (though, as the Governing in Tough Times feature shows, judicial discretion can be a good thing). Before we examine the factors that affect judicial decision making, however, we must distinguish between the legal settings of appellate courts and trial courts.

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Governing in Tough Times

Evidence-Based Sentencing

Our state prisons are spilling over even though millions of dollars are shoveled into new construction; the rates of released felons committing another crime and returning to prison (recidivism) are a historic high of nearly 60 percent; court dockets, judges, and staff are slammed with work; parole and probation services are widely believed to be broken; and state budgets have been severely depleted as corrections costs (more than $50 billion a year) have become the fastest-growing segment of state budgets, second only to Medicaid.

There seems to be no end to the problems besetting the courts and criminal justice.

However, a new approach to sentencing promises at least a modicum of relief to prison overcrowding, reduced recidivism rates, and lower caseloads. There is a growing body of research indicating that evidence-based sentencing (EBS) helps to reduce crime rates and save states money.

The driving principle of EBS is that all offenders are different: they may be drug addicted, alcoholic, mentally ill, violent, or generally like the rest of the normal, noncriminal population. The goal is for the judge's sentence to provide the incarceration period, probation conditions, or treatment services called for by the specific circumstances of the offense and the offender. Through flexible sentencing, the judge can individually craft penalties or inducements to reduce recidivism risk in rehabilitative cases, and to reduce risk to the public through swift and lengthy sentences in others. By using actuarial risk and assessment tools, the court can statistically associate the offender's characteristics with those of past cases for which the recidivism outcomes are known and provide these data to the judge before sentencing. The judge can then impose the preferred degree of probation, jail time, diversion from prosecution, or other sanction. The goal is to motivate the offender to change his behavior and stay out of jail.

What stands in the way of EBS are state laws that mandate strict sentencing and/or prohibit judges from assigning offenders to treatment or probation, as well as inadequate offender record-keeping and tracking. Training in EBS is required for both judges and court personnel so that they are fully aware of sentencing alternatives and their likely implications.

( Taking the lead in developing and funding EBS approaches are Oregon and Washington. Based on early evaluations in Washington, significant monetary savings have been achieved and recidivism rates reduced by 17 percent. Other states are taking notice. SOURCES: Pew Center on the States, “Arming the Courts with Research: Ten Evidence-Based Sentencing Initiatives to Control Crime and Reduce Costs,” Public Safety Policy Brief 8 (May 2009), www.pewpublicsafety.org ; Pew Center on the States, “One in 1000: Behind Bars in America,” 29 (Washington, D.C.: The Pew Charitable Trusts, 2008); D. A. Andrews, James Bonta , and J. Stephen Wormith , “The Recent Past and Near Futur e of Risk and/or Need Assessment,” Crime and Delinquency 7 (January 2006): 12–13. )

IN AND OUT OF THE TRIAL COURT

Approximately 90 percent of all civil and criminal cases are resolved outside the courtroom or through guilty pleas. In many civil cases, the defendant never appears in court to defend himself, thereby implicitly admitting his guilt and therefore losing the case by default. Other civil cases are settled in a pretrial conference between the defendant and the plaintiff (where, for instance, payments on an overdue debt might be rescheduled) or through voluntary dispute resolution procedures such as mediation or arbitration.

The process of settling criminal cases out of court at the discretion of the prosecutor and the judge is called plea bargaining . Although some defendants plead guilty as originally charged, acknowledging guilt for a lesser charge is more typical in criminal proceedings. With the possible exceptions of the victim and the general citizenry, everyone benefits from plea bargaining, a fact that helps account for its extensive use. The accused gets off with lighter punishment than she would face if the case went to trial and she lost. The defense attorney frees up time to take on additional legal work. The prosecuting attorney increases his conviction rate, which looks good if he has political ambitions. The judge helps cut back the number of cases awaiting trial. Even police officers benefit by not having to spend time testifying (and waiting to testify) and by raising the department's clearance rate (the number of cases solved and disposed of).

( plea bargaining Negotiation between a prosecutor and a criminal defendant's counsel that results in the defendant pleading guilty t o a lesser charge or pleading guilty in exchange for a reduced sentence. )

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Out-of-court settlements through plea bargaining are negotiated in an informal atmosphere in the judge's chamber, between attorneys in the halls of the court building, or over drinks in a neighboring pub. This is a disturbingly casual way to dispense justice. The process is secretive and far removed from any notion of due process. The prosecuting (district) attorney enjoys enormous discretion in making deals. Often the propensity to settle depends on the length of the prosecuting attorney's court docket or her professional relationship with the accused's attorney, not on the merits of the case. All too often an innocent person pleads guilty to a lesser offense for fear of being wrongly convicted of a more serious offense, or because he cannot post bail and doesn't want to spend any unnecessary time behind bars. Equally disturbing, particularly to a victim, is the fact that plea bargaining can soon put a guilty person back on the streets, perhaps to search for another victim.

Nonetheless, plea bargaining is widely practiced. It is almost inevitable when the prosecutor's case hinges on weak evidence, police errors, a questionable witness, or the possibility of catching a bigger fish. Negotiation of a guilty plea for a lesser offense can occur at any stage of the criminal justice process.

If the accused is unable to make a deal with the prosecuting attorney, he faces either a bench trial by a single judge or a trial by jury . Both involve a courtroom hearing with all the legal formalities. In some jurisdictions and for certain types of cases, the defendant has a choice. In other situations, state legal procedures specify which trial format will be utilized. A jury trial is always mandatory for murder cases.

( bench trial Trial by a single judge, without a jury. trial by jury A trial in which a jury decides the facts and makes a finding of guilty or not guilty. )

In a bench trial, the judge alone hears all arguments, determines the facts, and makes rulings on questions of law. Jury trials depend on a panel of citizens who decide the facts of the case; the judge instructs the jury on the applicable law. Although judges and juries would usually reach the same decision, the uncertainty introduced by twelve laypersons is usually great enough to convince a defendant to choose a bench trial or, if offered,

alternative means of resolving the dispute such as mediation. Only about 2 percent of all cases are resolved by jury trial. 49

When jury trials do occur, attorneys seek to limit the unpredictable nature of juries by extensively questioning individuals in the jury pool. Each side in the dispute has the right to strike the names of a certain number of potential jurors without giving a specific reason.

Others are eliminated for cause, such as personal knowledge of the case or its principals. In high-stakes cases, the jury-selection process involves public opinion surveys, individual background investigations of potential jurors, and other costly techniques.

Many courts experience problems in getting people to perform their civic duty of jury service. Juror shortages can seriously impede the value of a speedy trial. Some individuals shirk from jury duty to avoid the accompanying loss

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of income from their regular job. Others may not be able to arrange day care or elder care.

With increasing frequency, some people simply shrug off their responsibility to serve. Judges may respond to those who ignore their summons by sending the sheriff or bailiff to round them up and haul them before the judge. In North Dakota, New Jersey, and elsewhere, their names are published in the local newspaper. Turning to positive incentives, some states are improving the jury duty experience by installing computer workstations, snack rooms, libraries, and other amenities in the jury lounge. (See the Controversies in States and Localities feature box for a discussion of how the use of cell phones by jurors has created problems.)

INSIDE THE APPELLATE COURT

Appellate courts are substantially different from trial courts: No plaintiffs, defendants, or witnesses are present; no bargaining or pre-decision settlement is allowed. The appeal consists of a review of court records and arguments advanced by the attorneys, who frequently are not the same lawyers who originally represented the parties. Appellate court rulings are issued by a panel of at least three judges who are tasked with deciding if legal errors have occurred. Unlike decisions in most trial courts, appellate court decisions are written and published. The majority vote prevails. Judges voting in the minority have the right to make a formal, written dissent that justifies their opinion.

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Controversies in States and Local ities

Should Jurors Be Kept Off-Line?

As long as juries have been constituted to hear cases and decide guilt or innocence, there have been problems with jurors. Some fall asleep during the trial proceedings; some engage in side conversations with other jurors; some ask inappropriate questions of other jurors or the judge; and some attempt to bully fellow jurors into agreement. Minor problems are handled by the jury foreperson (appointed by the judge to serve as “chair” of the jury).

More serious issues may be reported to the jury administrator or to the judge.

What about jurors who use their iPhones or Droids to gather information on the trial independently, or to text, tweet, Facebook, or e-mail trial proceedings to family, friends, or the media? Inappropriate use of social media and the Internet by jurors is a burgeoning problem in our courtrooms, resulting in dismissals of cases and overturned decisions.

The problem first surfaced in a 2009 Google mistrial in a federal drug case in which jurors conducting Internet research on the case forced the judge into declaring a mistrial. Soon, some thirty states adopted new verbal and written jury manual instructions prohibiting jurors from communicating about or doing research on a case while serving as juror.

Jurors are instructed to base their decisions solely upon the evidence that is presented in the courtroom, not on external sources. That's not an easy thing to do in an age of 24/7 connectivity. Jurors may text a friend or spouse seeking the meaning of a word or legal term. They may be tempted to Google the name of the defendant or a witness, or simply to tell someone how the trial is going.

Obviously, if jurors had their cell phones and other Internet devices confiscated at the beginning of a trial, such problems would be prevented. But would citizens then try even harder than usual to escape jury duty? What if there was a family emergency that required the jury member's immediate attention? What about an extended trial in which jurors are sequestered for lengthy periods of time? Such dilemmas are likely to confound court personnel and judges increasingly in the coming years.

SOURCES: Maggie Clark, “Jurors on the Internet: A Dilemma for the Courts,” stateline.org (December 19, 2011); Julie Blackmon and Ellen Brickman, “Let's Talk: Addressing the Challenges of Internet- Era Jurors,” www.thejuryexpert.com (March 30, 2011).

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State supreme courts vary dramatically in ideology. Those in Hawaii, Rhode Island, and Maryland are much more liberal than those in Arizona, Mississippi, and New Hampshire. There is marked variation in the dissent rates of state appellate courts. Some courts maintain a public aura of consensus on even the most controversial matters by almost always publishing unanimous opinions. Justices may disagree, but they do not necessarily dissent formally. Other courts are rocked by public disputes over legal questions. Personal, professional, partisan, political, and other disagreements can spill over into open hostility over casework. As an Illinois chief justice observed, “Dissents are born not of doubt but of

firm convictions.” 50 Supreme courts in states such as California, New York, Michigan, and

Mississippi have a history of contentiousness, whereas others, like those in Rhode Island and Maryland, are paragons of harmony. Dissent rates appear to be positively related to a state's socioeconomic and political complexity, such as urbanization and partisan competition. Judges with long tenure and who do not have to face the voters in elections are more likely to dissent. 51 More dissent also occurs in courts with a large number of justices and with intermediate appellate courts. The more time justices have at their disposal, the more likely they are to find reasons to disagree.

INFLUENCE OF THE LEGAL SYSTEM

In addition to the facts of the case itself, judicial decision making is influenced by factors associated with the legal system, including institutional arrangements, accepted legal procedures, caseload pressures, and the ease with which certain interested parties gain access to the legal process.

1. Institutional Arrangements The level, or tier, of court is a structural characteristic that influences decision making. Trial court judges enforce legal norms and routinely apply the law as it has been written and interpreted over the years. The trial court permits direct interpersonal contacts among the judge, the jury, and the parties (usually individuals and small businesses). Divorce cases, personal injury cases, traffic-related cases, and minor criminal cases predominate in trial courts.

Appellate courts are more apt to interpret the law and create public policy. State constitutional issues, state-local conflicts, and challenges to government regulation of business are the kinds of issues likely to be found in appellate courts. Cases typically involve government and large corporations. A particular case in a high court sometimes has an enormous impact on public policy, for example, when judges depart from established precedent or offer new interpretations of the law. Recently, the Wisconsin Supreme Court

essentially overturned a constitutional amendment guaranteeing the right to carry a concealed weapon; the supreme court of Massachusetts legalized same-sex marriages; and Nevada's highest court nullified a state constitutional provision that two-thirds of the legislature must approve tax increases. Florida's supreme court struck down an education voucher system that permitted children to

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attend private schools at the public's expense, and Iowa's, New Jersey's, and New York's

have instructed the legislature to recognize civil unions.

Another important institutional arrangement is the selection procedure for judges. For instance, judicial decisions may be influenced by partisan electoral competition. Especially when a judge facing re-election must vote on an issue highly salient to voters, public opinion can affect the judge's ruling. 52 Death penalty cases provide a good example of this point. A study of judicial decision making in Texas, North Carolina, Louisiana, and Kentucky found that judges seeking re-election tend to uphold death sentences. In these traditionally conservative states, a decision in support of the death penalty helps to avoid unwanted pre- election criticism from political opponents. 53

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2. Legal Procedures and Precedent Under the legal doctrine of stare decisis and on the basis of precedent , the principles and procedures of law applied in one situation are applied in any similar situation. In addition, lower courts are supposed to follow the precedents established by higher courts. An individual decision may seem unimportant, but when it is made in the context of other similar cases, it helps judicial precedent evolve. Through this practice, the doctrine of equal treatment before the law is pursued. When lower-court judges refuse to follow precedent or are ignorant of it, their decisions can be overturned on appeal. Of course, several conflicting precedents may relate to a case; in such instances, a judge will choose among them in justifying his ruling. A previous decision may become obsolete, may be manifestly absurd, or may simply clash with a judge's values or point of view.

( stare decisis The legal doctrine that precedent set in earlier cases should guide judges' rulings. precedent The legal principle that previous similar court decisions should be applied to future decisions. )

Where do judges find precedent? Within a state, supreme court decisions set the norms. Supreme courts themselves, however, scan the legal landscape beyond state boundaries. In the past, decisions of the U.S. Supreme Court heavily influenced those of the state supreme courts. Increasingly, however, state supreme courts are practicing doctrinal diversity and looking to one another for precedent. State appellate judges borrow from and cite the

experiences and decisions of other states. They especially tend to rely on the more professional, prestigious supreme courts, such as those of California, Colorado, and Washington. 54 State courts also tend to network with courts in the same region of the country, where cultural and other environmental factors are similar. 55

3. Caseload Pressures Caseload affects judges' decisions. The number of cases varies in accordance with crime rates, socioeconomic characteristics of the jurisdictions, state laws, the number of judges, and many other variables. It stands to reason that the quality of judicial decision making is inversely related to caseload. Judges burdened by too much litigation are hard-pressed to devote an adequate amount of time and attention to each case before them.

4. Access to the System The final legal-system characteristic affecting judicial decisions is the access of individuals, organizations, and groups to the court system. Wealthy people and corporations are better able to pay for

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resources (attorneys, legal research, and so on) and therefore enter the legal system with a

great advantage over poorer litigants. Special-interest groups also enjoy certain advantages in influencing judicial decisions. They often have specialized knowledge in areas of litigation, such as environmental or business regulation. Lobbying by interest groups is much less prominent in the judicial branch than it is in the legislative and executive branches, but groups can affect outcomes by providing financial aid to litigants in important cases and by filing amicus curiae (friend of the court) briefs supporting one side or the other in a dispute, or, in popular election systems, making monetary contributions to a judge's re- election campaign.

The states have implemented several reforms to increase access to the judicial system for those who are disadvantaged. For example, court interpreters are available in states with large Latino and Asian populations. Physical and communication barriers are being removed so that persons with disabilities can participate fully in all aspects of the legal system. Racial, ethnic, and gender biases against attorneys, plaintiffs, defendants, witnesses, and other court participants are being addressed (although women still tend to receive less severe sentences than men who commit similar crimes). 56 Night courts remain open late for people who have difficulty getting off their day jobs to appear in court. And day care is being provided for children of plaintiffs, defendants, witnesses, and jurors. Gradually, the state courts are responding to changes in the nature of society.

PERSONAL VALUES, ATTITUDES, AND CHARACTERISTICS OF JUDGES

Simply put, judges do not think and act alike. Each is a product of individual background and experiences, which in turn influence decisions made in the courtroom. Studies of state court justices have found that decisions are related to the judges' party identification, political ideology, prior careers, religion, age, and sex. In other words, personal characteristics predispose a judge to decide cases in certain ways.

For example, Democratic judges tend to favor the claimant in civil rights cases, the injured party in liability (tort) cases, the government in tax disputes, the employee in worker's compensation cases, the government in business regulation cases, the defendant in criminal contests, the union in disagreements with management, and the tenant in landlord-tenant cases. Republicans tend to support the opposite side on all these issues. Female judges, who now occupy one out of four seats on supreme courts, are more supportive of women on sex discrimination and other feminist issues; more likely to favor the accused in obscenity and

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death penalty cases; and, in general, are more liberal than their male colleagues. 57 And finally, the judge's race appears to have little effect on the sentences handed down to black and white defendants, although African American judges, according to one study, tend to be tougher when sentencing all defendants than are Latino judges. 58 Obviously, these distinctions do not hold in all situations, but the point is that justice is an opaque concept.

No wonder attorneys try to shop around for the most sympathetic judge before filing a legal action.

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Judicial Federalism

During the 1950s and 1960s, the U.S. Supreme Court was the leading judicial actor in the land. Under Chief Justice Earl Warren (1953–1969) and his liberal majority, the Court handed down a long series of rulings that overturned racial segregation, mandated legislative reapportionment, extended voting rights, and expanded the rights of accused criminals. Significant reversals of state court decisions were commonplace.

Beginning with Chief Justice Warren Burger (1969–1986) and a growing proportion of conservative justices, however, the Supreme Court changed direction. Since 1988, a conservative majority has been in control. The Court has been somewhat less intrusive in state and local affairs and has, through its own caution, flashed a green light to state courts inclined to activism (see Chapter 2 ). The result is judicial federalism , in which state courts look first to state constitutional and statutory laws in rendering legal judgments on important state and local issues once addressed mostly by the federal courts.

JUDICIAL ACTIVISM IN THE STATES

Judicial activism is a value-laden term with ideological dimensions. 59 When associated with politically liberal court decisions, it is decried by conservatives. However, conservative judges (such as those on the U.S. Supreme Court) are also activists. Whether liberal or conservative, all tend to show strong ideological tendencies.

( judicial federalism A trend in which state constitutional and statutory laws are consulted and applied before federal law. judicial activism The making of public policy by judges through decisions that overturn existing law or effectively make new laws. )

An objective definition of judicial activism, then, points to court-generated change in public policy that is perceived as illegitimate by opponents who favor the status quo. 60 Judicial activism is in the eye of the beholder. All too often, an “activist” judge is one who doesn't decide a case the way one thinks he should.

Regardless of one's feelings on the matter, state supreme courts have clearly become more activist by expanding into new policy areas. They are more likely to be involved in the policy-making process by making decisions that affect policy in the executive branch, and many even appear to pre-empt the lawmaking responsibility of the legislature when, in exercising the power of judicial review, the courts invalidate a statute based on constitutional grounds.

Recent examples of judicial federalism include the following:

· California, Connecticut, and Massachusetts courts have expanded a woman's right to abortion on demand and the right to financial aid from the state for abortions. Virginia, acting to the contrary, requires parental consent before an abortion can be obtained by an underage girl.

· Although the U.S. Supreme Court has upheld state sodomy prohibitions, courts in New York, Pennsylvania, and other states have struck down sodomy laws as violations of the right to privacy, as spelled out in the state constitution.

· The Montana Supreme Court attempted to effectively overrule the U.S. Supreme Court when, in 2012, it found that the federal court's Citizens

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United decision did not apply to Montana. Oregon's supreme court rejected a U.S.

Supreme Court decision that provided guidelines for declaring certain printed and visual materials to be obscene. The Oregon court noted that its state constitution had been authored “by rugged and robust individuals dedicated to founding a free society unfettered by the governmental imposition of some peoples' views of morality on the free expression of others.” The court went on to declare, “In this state, any person can write, paint, read, say, show or sell anything to a consenting adult even though that expression may generally or universally be considered ‘obscene’.” 61

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How can state courts override the decisions of the highest court in the United States? The answer is that they are grounding their rulings in their own constitutions instead of basing them on the national constitution. In several decisions, the U.S. Supreme Court has upheld the right of the states to expand on the minimum rights and liberties guaranteed under the national document. Of course, when there is an irreconcilable conflict between state and federal laws, the latter prevails.

CURRENT TRENDS IN STATE COURTS

The wave of state court activism is not carrying all the states with it. Many state supreme courts remain caught in the doldrums, consistently endorsing— rather than repudiating—

U.S. Supreme Court decisions. Some of them are so quiet, as one wag suggested, “that you can hear their arteries harden.” But even traditionally inactive courts in states such as Wisconsin and North Carolina have been stirred into independent actions recently. The U.S. Supreme Court is likely to have a conservative majority for the foreseeable future, permitting the state courts to explore the legal landscape further. State court activism seems to be contagious, as courts utilize their own information and case networks instead of those of the U.S. Supreme Court.

Of course, with rare exceptions, judges cannot seize issues as governors and legislators can; they must wait for litigants to bring them to the courthouse. Although judges can issue rulings, they must depend on the executive and legislative branches to comply with and enforce those rulings. Nonetheless, many state supreme courts are becoming more active in the policy- making process. 62 The reluctance of the federal courts to address important and controversial issues comprehensively has resulted in more cases for state supreme courts to decide.

State court activism does have some negative points. First, some courts may overstep their authority and try to go too far in policy making, intruding into the proper domain of

executive and legislative actors—not to mention that of the voters. The Nevada Supreme Court, for instance, nullified a twothirds legislative majority's decision to hike taxes. A second, related problem is that judges have little knowledge or expertise in the substance of public policy or in the policy-making process. They have no specialized staff to perform in- depth policy research on particular policy issues, and they cannot realistically depend on lawyers to do policy research for them. After all, lawyers are

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trained and practiced in legal reasoning and process, not social or political science. Third,

state courts are increasingly issuing policy decisions that have significant budgetary implications. Court rulings on school finance, prison overcrowding, and treatment of the mentally ill have severely affected state budgets. Such court actions rarely take into account their related financial effects. But courts in California, New Jersey, Nevada, and elsewhere have held that legislative withholdings of designated local government funds violated their state constitutional obligations. 63 A fourth problem is that in the context of state constitutional rights, geography is limiting. A state-by-state approach may not be appropriate for policies in areas such as civil rights, clean air and water, and safe food, which should be provided equally to all citizens.

Administrative and Organizational Improvements in State Courts

We have already discussed several important judicial reforms: intermediate appellate courts, court consolidation, merit-selection plans for judges, more practical means for disciplining and removing judges, and administrative and organizational improvements, including those of a financial nature. This last category deserves further consideration.

FINANCIAL IMPROVEMENTS, FINANCIAL PRESSURES

The exorbitant costs of some trials can bankrupt local jurisdictions if state financial assistance is not forthcoming. For example, one child molestation case in Los Angeles County lasted two and a half years and carried a tab of $15 million. (Neither of the two defendants was convicted.) The price tag for a murder trial and subsequent appeals can also be counted in the millions. A high-profile multiple murder case in Georgia effectively drained the public defender system of funds in 2007 and halted proceedings in seventy-two other capital cases. 64

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The national economic collapse of 2008–2011 resulted in substantial cuts to state court budgets, with serious consequences for indigent defendants and all parties interested in justice and speedy trials. In 2011, twenty-eight state judicial budgets experienced serious cuts, and additional reductions occurred in 2012. 65 The alarming results include staff layoffs, suspensions of jury trials, restricted court operating hours, and in some cases, even permanent court closings. 66 Meanwhile, caseloads for prosecutors, public defenders, and judges soared nationally with rising numbers of foreclosures, debt proceedings, civil

disputes, and other filings. 67 The Massachusetts chief justice was moved to observe that state courts had reached “the tipping point of dysfunction.” 68

In response to such budget crises in the past, more than half of the states assumed full financial responsibility for the operation of state and local courts. Through centralized budgeting (also referred to as unified court budgeting), a consolidated budget for all state and local courts is prepared by the chief administrative officer of the state court system, detailing all personnel, supplies, equipment, and other expenditures. This is intended to

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enhance financial management and maintain judicial independence from the executive and

legislative branches. (Legislatures have been known to threaten and even implement court budget cuts because of displeasure with unpopular rulings.) 69 But, as we have seen, state courts are not immune to severe state fiscal stress; they suffer like any other entity.

DEALING WITH GROWING CASELOADS

Case backlogs are a commonly recognized problem, and they are getting worse with budget shortfalls. State trial courts alone entertain some 100 million new cases each year. 70 Some judges hand down more than 300 opinions annually. Delays of two years are not uncommon for appellate court hearings, and the unprecedented pressure is growing.

Excessive caseloads are caused by numerous factors, including the greater propensity of losing parties to appeal lower-court decisions, the tremendous growth in litigation, heightened interest group activity, huge increases in drug-related and drunk-driving cases, and poor caseload-management procedures. Exacerbating the problem is the high demand for litigation aggravated by the prodigious quantity of lawyers in the United States, which accounts for nearly two-thirds of all the lawyers in the world (over 759,000 were practicing in 2008). Calls for tort reform to reduce the number of liability and personal injury cases and the size of subsequent awards are common. (Torts account for about two-thirds of all civil trials; the average awarded in a tort trial is around $30,000.) 71

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( tort A civil case involving personal injury, misconduct, or negligence. )

The larger concern is that long delays thwart the progress of justice. The quality of evidence deteriorates as witnesses disappear or forget what they saw, and victims suffer from delays that prevent them from collecting damages for injuries incurred during a crime or an accident. Innocent defendants can be harmed by the experience of being held in jail for long periods while awaiting trial. Increasingly, criminal cases are thwarted because of witness intimidation by the accused, his friends, or others who desire to end the prosecution and free the accused.

Reducing excessive caseloads is not a simple matter. Common sense dictates establishing intermediate appellate courts and adding new judgeships. But much like a new highway draws more traffic, intermediate appellate courts, by their very existence, tend to attract

more appeals. Although additional judges can speed up the trial process in lower courts, they may also add to appellate backlogs. Expanding the number of judges in an appellate court is also problematic; hearings may take longer because of more input or factional divisions among judges. And, for better or worse, the law schools continue to spew out new lawyers.

The stubborn persistence of case backlogs has led to some interesting and promising new approaches.

1. Alternative dispute resolution. Almost all states today use mediation, arbitration, or other techniques to help settle litigation prior to or during formal courtroom proceedings. Mediation involves a neutral third party who tries

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to help the opponents reach a voluntary agreement. Arbitration consists of a binding

ruling by a neutral party in favor of one party or the other. In a growing number of states, civil litigants in search of timely settlement hire private judges to arbitrate their disputes.

2. Fines against lawyers and litigants. New laws or court rules allow judges to levy monetary fines against lawyers and litigants guilty of delaying tactics, frivolous litigation, or standards violations that require cases to be heard within a specified time period.

3. Case management systems. Judges can take charge of their dockets and impose a no- nonsense case management system. Although individual systems vary widely, a typical approach is multitracking, or differentiated case management. It distinguishes between simple and complex cases, as well as between frivolous and potentially significant cases, and treats them differently. Complex and significant cases are waved down the traditional appellate track. Simple and frivolous cases take a shorter track, usually under the direction of staff attorneys. In Vermont, this case management system is referred to as the “rocket docket.” Experiments with multitracking have been successful in reducing case delays in Arizona, Maine, New Hampshire, and other states. As noted earlier, another case management innovation designed to speed the wheels of justice is problem-solving or boutique courts, in which environmental law disputes, drug cases, or others with special characteristics are heard by judges in specialized courts.

4. New technology. Technological innovations are also improving the quality and quantity of court operations. Electronic databases (e.g., LEXIS and WESTLAW) are used to store case information and legal research and to transmit information from law offices to courts. Electronic filing of court documents and online access to court information for attorneys and citizens help track child support payments, store case data for legal research, transmit data from law offices to courts, and, in general, save the courts money and staff time. Arraignment procedures, during which suspects are formally charged, are videotaped to save time or to prevent potential problems from a disruptive defendant. Video courtrooms, in which trials are filmed, create a more accurate trial record and cost much less than a written transcript by a court stenographer. Lawyers in hightech courtrooms speed up proceedings by using PowerPoint, video clips, and Internet sources, all displayed for jurors on individual monitors. Audiovisual technology permits hearings, motions, pleas, sentencing, and other proceedings to be conducted long distance between the jail and the courthouse, thereby saving money and enhancing security.

5. Performance standards. The National Center for State Courts has developed performance standards for state trial courts to aid self-assessment and improvement. 72

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A growing number of states are not only adopting quantitative indicators of the speed with which cases are processed, but are also trying to measure broader concerns such as access to justice, fairness and integrity, public trust and confidence, and the quality of judges' decision making.

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COMPENSATING THE JUDGES

At first glance, judicial salaries seem high enough. In 2011, state supreme court judges earned an average of approximately $152,000. For a general jurisdiction trial court, it was

$136,238. 73 The variation is great: California justices make $218,237, whereas their

counterparts in Mississippi are paid only $112,530. Trial court judges are paid 10–20 percent less. However, these amounts are substantially below what an experienced, respected attorney can expect to make. A successful lawyer who gives up private practice and perhaps a lucrative partnership for the bench must be willing to take a considerable cut in income.

Unlike legislators, state judges are permitted little outside income. Therefore, it is reasonable to ask whether the best legal minds will be attracted to judgeships, given that judicial compensation is relatively low. This dilemma exists at all levels and in all branches of public service, from the municipal finance officer to the highway patrol officer, because most state and local government compensation lags behind that for comparable jobs in the private sector. If we expect our judges, law enforcement officers, and other public employees to be honest, productive, and highly qualified, perhaps they should be compensated fairly. Recent salary increases for state judges seem to reflect this principle.

JUDICIAL PERFORMANCE EVALUATION

Who judges the judges? In popular election and merit system states, the voters hold judges accountable. But voters have no voice in gubernatorial and legislative selection states. And even when judicial elections are held, how much do the voters really know about the candidates?

Judicial performance evaluation (JPE) offers an objective process to assess the performance of judges. Voters are educated, and judges are encouraged to use evaluation results for self-improvement. First adopted by Alaska in 1975, JPE programs are now mandated in eighteen additional states and under active consideration in several others. JPE involves confidential surveys of attorneys, court professionals, witnesses, jurors, and other court participants. Respondents are questioned about how the judge interprets the law, manages her workload, and interacts with people in the courtroom, among other factors. 74

Indications are that JPE can contribute to judicial self-improvement and provide valuable, job-related information on judges' performance to the voters. Used appropriately, JPE helps preserve the hallmark characteristics of independence and accountability of the judiciary. 75

STATE COURTS TODAY

Like the other two branches of government, the state judiciary has been reformed significantly. Court systems have been modernized and simplified, intermediate appellate courts have been added, processes have been streamlined, and case delays are being addressed as resources permit. Disciplinary and removal commissions now make it easier to deal with problem judges,

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and JPE furnishes useful data on judicial performance. But courts are still striving for

adequate funding, greater independence from political pressures and favoritism, and more accountability for their actions. Justice may appear at times to be an ephemeral ideal, and an expensive one at that, but it is more likely to be approximated in state judicial decisions today than ever before. The courts, like the rest of society, are participants in the technological age. New innovations and approaches will follow the recommendations of commissions in states now studying the needs of state judicial systems in the future.

Court modernization and reform have been accompanied by increased judicial activism. The newly assertive state courts have far surpassed the federal courts in public policy activism. They sometimes blatantly disagree with federal precedents and insist on decisions grounded in state constitutional law rather than in the national constitution. In short, the state courts are proactively responding to public concerns with the administration of justice.

CHAPTER RECAP

· State courts are organized into two tiers: appellate courts and trial courts.

· Structural reforms such as unified court systems have sought to make the courts more efficient and effective.

· The five methods for selecting judges are legislative election, partisan election, nonpartisan election, merit plan, and gubernatorial appointment. Each selection plan has certain advantages and disadvantages— there is no “one best way.”

· Many factors influence judicial decision making, including institutional arrangements; legal procedures; case precedent; caseload pressures; access to the legal system; and the personal values, attitudes, and characteristics of judges.

· Judicial federalism is related to increased capability and judicial activism in many state courts.

· Efforts to reform state courts include financial improvements, better caseload management, and improved compensation for judges.

KEY TERMS

civil case (p. 228)

criminal case (p. 228)

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administrative case (p. 228)

common law (p. 228)

limited jurisdiction trial courts (p. 229)

major trial courts (p. 230)

supreme court (p. 230)

intermediate appellate court (p. 230)

plea bargaining (p. 243)

bench trial (p. 244) trial by jury (p. 244) stare decisis (p. 247) precedent (p. 247)

judicial federalism (p. 249)

judicial activism (p. 249)

tort (p. 252)

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