case Study

Chapter 5.0

State Courts in Their Political Environment

Lawrence Baum

Courts occupy an ambiguous place in the political system. They are political institutions by any definition, yet they possess a degree of insulation from politics. That insulation stems from several characteristics of courts. Much of their work lies outside the mainstream of public policymaking, a condition that limits their involvement in political conflicts. Courts are also protected by a widespread belief that judges should be free to interpret legal questions according to their best understanding of the law. Finally, judges on the major federal courts and those who serve in a few states hold life terms that free them from concern about their tenure in office.

Yet even judges with life terms are subject to influence from their politi- cal environment. That influence is all the greater for judges who must win re- election or reappointment to maintain their positions. Primarily for this reason, state courts as a whole enjoy less insulation from politics than do their federal counterparts.

The relationship between courts and their political environment evolved over time. Today, state courts and their judges are under considerable pressure than usual. The extent of this pressure is difficult to ascertain and easy to exaggerate. But it is clear that in the early twenty-first century there is more conflict than usual between state courts and their political environments.

That change is significant in itself, and it illuminates the roles of the courts and their place in state politics. Thus it provides a useful focus for the examination of state courts in this chapter. I give primary attention to supreme courts, which are the most prominent state courts and which are affected the most by changes in the political environment.

State Courts in Policy and Politics

Like the other branches of government, the courts vary in their structure from state to state. However, most states have a three-level structure: a set of courts to conduct trials and related proceedings, intermediate appellate courts to hear appeals from trial-court decisions, and supreme courts that hear cases after decisions of intermediate courts. Since trial courts hear far more cases than the courts above them, they directly affect the largest number of people. But supreme courts have the broadest impact, because they are the final ar- biters of state law on the issues they address. Their position in the judicial system also attracts the greatest attention from people who are interested in state public policy.

Areas of Activity

State supreme courts and lower courts take action of three general types. The first and most straightforward is interpretation of state statutes—legislative enactments—in such fields as criminal law, labor relations, and environ- mental protection. Through their decisions state courts shape the law established by legislatures. In recent years, for instance, their decisions have applied statutory rules to a variety of new issues in family law.

Second, courts develop and interpret what is called the common law. In certain areas, the rules of state law were originally established through court decisions rather than statutes enacted by legislatures. The most important areas of the common law are property law, which governs the ownership and transfer of property; contract law, which concerns the enforcement of con- tracts; and tort law, which deals with liability for wrongful acts that cause property damage, personal injuries, or death. Legislatures can enact statutes to override court-made rules in these areas. But in the property and tort fields, most of the law continues to be made by the courts

Finally, state courts interpret the federal and state constitutions. Their in- terpretations of the federal Constitution are subject to review by the U.S. Supreme Court. In contrast, state supreme courts are the ultimate interpreters of their own state constitutions. A state decision that ascribes a particular meaning to a provision of a state constitution cannot be reversed by the Supreme Court. As interpreters of constitutions, state courts rule on such is- sues as the division of power between governors and legislatures, the balance between free speech and other values, and the obligation of state governments to fund public schools.

Relationships with Other Policymakers

State courts have strong connections with other courts and with the other branches of government. Within the judicial branch, one important connection is between state supreme courts and the U.S. Supreme Court. As noted earlier, the Supreme Court can review state decisions that interpret pro- visions of federal law. More broadly, state courts are obliged to follow the Supreme Court’s interpretations of federal law. In this way, the Supreme Court influences the content of state court decisions. At the same time, state courts have some leeway in how they apply Supreme Court decisions, and their use of this leeway shapes the ultimate impact of those rulings. All state judges are obliged to apply the Miranda rules for police questioning of suspects, but the way they interpret those rules in individual cases helps to deter- mine actual police practices. At the extreme, state courts sometimes refuse to follow Supreme Court rulings or implicitly evade those rulings, most often on issues of criminal procedure.

In addition to this “vertical” relationship, state supreme courts have “horizontal” relationships with their counterparts in other states. Courts in different states have no obligation to pay attention to each other’s rulings. Even if Illinois and Pennsylvania, for example, have statutes with exactly the same wording, the Illinois Supreme Court need not follow a Pennsylvania decision that interprets the Pennsylvania statute. Judges do, however, give credence to decisions in other states, and courts in different states provide ideas and cues to each other in their opinions.

The courts have multifaceted relationships with the other branches of state government. Their interpretations of statutes and constitutional provisions help to determine the impact of policies adopted by the legislature and executive branch. For their part, the other branches can adopt statutes to modify or overturn state court decisions on statutory or common-law issues, and they can initiate constitutional amendments to overturn decisions interpreting the state constitution.

The legislature and executive branch hold significant powers over courts and judges themselves. They control judicial budgets. Within the limits of their constitutions they can change a court’s jurisdiction (the kinds of cases it has power to hear), consolidate two courts, or even abolish a court. They can also initiate constitutional amendments when needed to accomplish the same ends. In several states governors, legislatures, or the two together decide whether to grant new terms to sitting judges.2 Nearly all state legislatures have the power to remove judges through impeachment.

Voters play a part in the constitutional amendment process. In nearly all states they hold the power to accept or reject constitutional amendments pro- posed by the legislature, and in about one-third of the states they can adopt amendments on their own through the initiative process. More important, the great majority of state judges—87 percent by one count—come before the voters when they seek new terms.3 Many states select judges through partisan or nonpartisan elections. Many others employ retention elections in which sit- ting judges face a yes-no vote rather than an opposing candidate, typically requiring approval by a majority of voters to retain office.

Thus, institutions in the courts’ political environment have the power to exert strong control over judges and their policies. Legislators might overturn court decisions on a regular basis, limit courts’ power to hear cases, punish courts with budget cuts, and remove judges who arouse their wrath. Voters might defeat judges who have joined in unpopular decisions or lines of legal policy. The question is the extent to which policymakers and the public actually use these means of control.

The broad answer is that they generally do relatively little with their powers. The great majority of court decisions are left standing. Courts seldom have their jurisdiction narrowed for punitive reasons. Far more judges win new terms than lose bids for reelection or reappointment. Yet even a limited use of such powers can have considerable impact on judges and their policies, and any increase in their use enhances these effects. In recent years, several developments have combined to reduce the insulation of courts from their political environment.

Sources of Increased Conflict

These developments are not specific to the states. Rather, they are broad trends that have affected federal courts as well. However, they have greater impact on courts and judges in the states. The most important developments take two forms. First, perceptions of liberal and activist courts have increased the level of unhappiness with courts and judges among people in and out of government. Second, changes in the political process have eaten away at the insulation of courts from their environment.

Perceptions of Liberal Activism

Of all the terms used in American politics, judicial activism is among the most ambiguous. One scholar has cataloged a wide range of meanings for judicial activism, and that term is often used with considerable imprecision.4 Frequently, people employ the word activist simply as an epithet to describe judges and decisions that they dislike. According to Supreme Court justice Stephen Breyer, “By judicial activism, what you mean, in part, is a judge who doesn’t decide the way I’d like it decided.

Still, activism is a useful way to describe an important aspect of judicial behavior. Perhaps the most important type of activism is decisions that make significant changes in public policy, especially in policies that the other branches have established. This type of activism can differ considerably in its extent across courts and over time.

Many people in politics believe that this is an era of heightened judicial activism, activism whose content is overwhelmingly liberal. This perception initially arose from the innovative Supreme Court decisions that expanded constitutional protections of civil liberties in the 1950s and 1960s. As the Court continued to hand down decisions establishing new rights, this perception hardened. Meanwhile, judges on lower federal courts drew attention for their own civil liberties decisions.

The perception of liberal activism in state courts developed more slowly. Indeed, the most prominent policies of state courts in the 1950s and 1960s were ideologically conservative. Some southern judges strongly resisted the legal claims brought by the civil rights movement. Throughout the country, some judges resisted the Supreme Court’s expansions of defendants’ rights. Gradually, however, observers of the courts became aware of several strands of state court policy that could be characterized as liberal and activist.

State Courts in Their Political Environment

These strands have provided an impetus for efforts by people in and out of state governments to secure greater control over state courts. They are also significant developments in themselves. On both counts they merit consideration in some detail.

One strand is in tort policy. As noted earlier, state courts play the primary role in shaping legal rules for compensation of personal injuries. Most issues in tort law involve conflict between two types of parties. People who appear as plaintiffs in tort cases, those who make claims for personal injuries, benefit from rules that make it easier to sue and to establish liability for injuries and that allow larger damage awards for plaintiffs who win cases. On the other side are defendants, most often businesses and professionals, such as doctors, along with the insurance companies that typically would pay any damages awarded against defendants. For their part, political liberals tend to favor plaintiffs, conservatives defendants.

At any given time the courts’ policies in tort law are ideologically diverse, so they can be summarized only with caution. Still, the legal rules established by state courts in the nineteenth century can be characterized as more conservative than liberal.6 This direction of tort policy was largely reversed in a process that began in the first half of the twentieth century and accelerated in the 1950s and 1960s. On issue after issue, supreme courts eliminated traditional legal doctrines that limited tort liability, replacing them with doctrines that favored plaintiffs over defendants. Every state participated in this shift to some degree, and most changed their traditional doctrines quite substantially.

The reversal of traditional doctrines involved an impressively large range of issues. And in undertaking these changes, courts frequently had to overturn well-established legal principles. When the South Carolina Supreme Court in 1985 abolished the immunity of state and local governments from lawsuits, it overruled at least 118 of its past decisions, handed down from 1820 through 1984.

It took a long time for this trend to gain wide notice. But by the 1980s business groups were calling attention to what they called a “liability crisis,” arguing that businesses were losing enormous sums of money and that the economy was damaged by frivolous lawsuits and unjustified court verdicts against defendants. As these groups saw it, the liberalizing changes in tort law were one important source of the crisis. Talk about a liability crisis has grown since that time, even though state courts in the 1980s began to draw back from the liberal trend in torts.

A second strand of perceived liberal activism is in criminal procedure. As noted earlier, state supreme courts in the 1960s often expressed skepticism about the Supreme Court’s expansions of defendants’ rights and sometimes limited the application of those expansions in cases in their states.10 But in the 1970s, as the Supreme Court began to narrow defendants’ rights, some state courts were equally skeptical of that narrowing. They had a legitimate means to act on their skepticism: if the Supreme Court holds that a right is not protected under the U.S. Constitution, a state court can hold that the right is protected under its constitution, thereby making the Supreme Court’s ruling irrelevant to that state.

State supreme courts have used this power frequently to protect defendants’ rights. One study found 232 decisions of this type in forty-four states between the late 1960s and the late 1980s.11 most supreme courts participated in this development only to a limited degree: more often than not, courts that were asked to find new defendants’ rights in their constitutions held that such rights did not exist. Still, the cumulative effect was to expand rights significantly. For instance, in 1984 the Supreme Court held that the evidence from some illegal police searches could be introduced in court because officers had acted in good faith. Since that time, at least thirteen state supreme courts have made this decision irrelevant in their states by holding that there is no good faith exception in their own constitutions.

In 1972 the Supreme Court held that existing capital punishment laws were unconstitutional. State legislatures immediately began to adopt new laws to meet the Court’s objections to the old ones, and ultimately three-quarters of the states reestablished the death penalty. Since 1973, more than 7,000 defendants have been sentenced to death.13 Most states with capital punishment provide for automatic appeals of death sentences to their supreme courts, so supreme courts in many states have heard a steady stream of such appeals. In some states, such as California, death penalty cases account for a substantial proportion of the supreme court’s decisions. One study across the states found that in about 40 percent of the appeals, the supreme court overturned the death sentence.14 Many supreme courts, including those of New York and Kansas in 2004, have ruled that provisions of death penalty statutes violated the state or federal constitutions.15 These decisions overturned multiple death sentences and required further legislative action to restore capital punishment.

Decisions that favor criminal defendants tend to be unpopular among people who are aware of them. Indeed, there is probably no other area of state policy on which public opinion is so intense and so one-sided. Thus liberal rulings in criminal justice potentially create problems for the courts and judges who make them.

A third strand of perceived liberal activism involves a specific issue, the funding of public schools. Traditionally, most funds for public schools in the United States have come from local property taxes. As a result, the property values in a school district strongly influence the level of financial support for its schools. State contributions to school funding usually reduce financial disparities among school districts but fall well short of eliminating them.

In 1973 the Supreme Court held that these disparities did not violate the equal protection clause of the Constitution.16 After this decision, groups challenging the disparities focused on state courts and state constitutions. In the 1970s and 1980s, when challenges generally were based on inequalities across districts, most were unsuccessful. Since then, these groups have shifted ground, attacking state funding systems primarily on the basis of constitutional provisions that require adequate support for public schools. These challenges have been more successful. By now, twenty supreme courts have ruled that their states’ systems were invalid, the most recent being Kansas in 2005.

The politics of school funding is more complex than that of criminal justice, since the views of the public are divided (largely on the basis of which school districts would benefit from changes in funding systems). But implementation of these court rulings is typically quite expensive, in that states are required to provide additional funding for districts with limited capacity to raise money through property taxes. Legislators and governors often resent the burdens they bear in raising taxes to obtain the required money. Further, many of them believe the courts are intruding on a matter of basic state policy that should remain the domain of the other branches. For these reasons, decisions that mandate changes in school-funding systems are a potential source of friction between courts and the other branches.

State courts have adopted other noteworthy strands of policy involving interpretations of state constitutions. For instance, courts in fifteen states have held that prohibitions on state funding of abortion under the Medicaid pro- gram are unconstitutional.18 Some state supreme courts ruled that criminal laws against sodomy violated state constitutions. In both instances these rul- ings found rights in state constitutions that the Supreme Court had not found in the U.S. Constitution, although the Court overturned its earlier ruling and struck down laws against homosexual sodomy in 2003.

Of all the strands of state court policy in the current era, one stands out for the level of attention it has attracted. Two supreme courts interpreted state constitutions to require that same-sex couples be allowed to marry (Massachusetts) or to join in civil unions similar to marriage (Vermont). The Hawaii Supreme Court did not rule definitively on the issue but gave the state a heavy burden of proof in its efforts to justify prohibition of same-sex marriage.

These strands of policy have given state courts reputations for liberal activism. In doing so, they have created conditions for conflict with some political interest groups and policymakers in the legislature and executive branch. In turn, that conflict has spurred efforts by these groups and policymakers to exert greater control over courts and their policies.

Changes in the Political Process

Perceptions of judicial activism are one source of increased friction between courts and their political environment. Another source is two developments in the political process. The first was a major change in politics during the late twentieth century: a burgeoning of political interest groups and of group campaigns to influence public policy. With this change government is now under greater scrutiny, and it is confronted with more demands for action. This development has been most visible in national politics, but it extends to the states as well.21 Increasingly, leaders of groups that had focused their efforts on shaping national policy realized that state policy affected them in important ways and that they needed to have an active presence in state politics.

This certainly is true of state courts. Interest groups came to recognize the importance of state law and sought to shape it by participating in litigation. Since the 1970s, for instance, civil liberties groups have brought more cases in state courts, seeking an alternative to an increasingly conservative federal judiciary. One measurable aspect of interest group involvement in state litigation is the submission of amicus curiae briefs by interest groups that want to add their arguments to those made by the litigants. Traditionally, state supreme courts received few amicus briefs, but their number has grown con- siderably.22

Interest groups can also stimulate efforts to control the courts. Among other things, groups help to put court policies on the agendas of the other branches and the general public. Thus the growing involvement of groups in state politics as a whole and specifically in state courts increases the potential for conflicts between courts and other institutions.

The second political development, a decline in what may be called comity, should be put in broader context. Since the presidential election of 2000, journalists have written an enormous amount about what they see as the polarization of the American electorate. That theme is captured in the frequent references to “red” (Republican) and “blue” (Democratic) states, whose residents are depicted as holding different views of the world and strong partisan attitudes.

It is debatable whether this image captures the reality of public attitudes. Indeed, considerable evidence suggests that Americans are not especially polarized in their attitudes toward politics and policy.23 But at the elite level, among people in government and those who are active in politics, the image of polar- ization has considerable accuracy. Accompanying that polarization has been a decline in comity, or harmony and cooperation in politics and government.24

Perhaps the key source of the decline in comity is ideological changes in the political parties in government. Half a century ago, Congress included many Republican liberals and even more Democratic conservatives. Today, these mavericks have nearly disappeared, and even moderates have become more scarce. As a result the parties face each other across a bigger divide, and the stakes in their victories and defeats have become considerably larger. In turn, self-restraint in political battles has declined. Indeed, there is something of a downward cycle in self-restraint, as Democrats and Republicans seek to match each other’s initiatives. To take one example, this downward cycle is one reason for the growth of contention over Senate confirmation of federal judges.

Talk about declining comity in politics has focused on the national level, especially Congress. However, this trend inevitably has extended to the states, and we would expect it to affect reactions to the courts by participants in state government and politics. If perceptions of liberal activism arouse disapproval of judges and courts, those who disapprove have become more likely to act on their feelings. To the extent that state courts have enjoyed some protection from political attack, that protection is weakened by the decline in political comity.

State Courts in Their Political Environment—

Forms of Action against the Courts

When institutions in the political environment of state courts disapprove of what the courts are doing, they can take several kinds of action. The most direct involves efforts to change the policies in question. Alternatively, the public or the other branches of government can remove from office the judges who have made unpopular decisions. Finally, policymakers can attack the courts as institutions.

Altering Court-Made Policy

It is the exception to the rule for legislatures and governors to override judicial policies through new statutes or constitutional amendments, but such action is hardly rare. These overrides do not necessarily involve serious animosity toward the courts. However, animosity has been present in responses by the other branches to some strands of activist court policy.

When state supreme courts changed the tort law in ways that made it more favorable to plaintiffs, they were modifying and overturning rules they had made themselves. Thus there was no direct conflict between the courts and the other branches. But legislatures intervened to override some of the new rules in areas of tort law such as liability for defective products and medical malpractice. Across the states, legislatures negated a good many liberal doctrines in tort law, replacing court-made rules with their own.

The new legislative rules were frequently challenged on the basis of pro- visions in state constitutions. Responding to these challenges, the courts ruled that many of the new rules were unconstitutional. Between 1983 and 2000, according to one count, courts in twenty-six states struck down provisions of eighty-one new statutes.25 By doing so, they aroused considerable wrath from interest groups that represent defendants in tort cases and from policymakers in the other branches.

In Ohio, for instance, the Supreme Court and the legislature were embroiled in conflict during the 1990s. Between 1991 and 1995 the Supreme Court handed down a series of decisions holding that provisions of recent tort statutes were unconstitutional. In 1996 the legislature enacted a broad tort statute, changing a large number of substantive and procedural rules. Several provisions in the new statute were intended to overturn earlier decisions of the state supreme court. In 1999 the court struck down the whole statute by a 4–3 vote, ruling that it infringed on powers of the courts and that it violated a constitutional rule against inclusion of multiple subjects in one statute.26 At least for the time being, the supreme court had blocked legislative change in the tort law, and legislators who supported change were understandably unhappy with that outcome. That unhappiness led to considerable anger at the offending supreme court justices.

As suggested earlier, court decisions that overturn school-funding systems create the potential for even greater conflict between the branches.

These decisions present governors and legislatures with the task of establishing new funding systems. This task is usually difficult and unpleasant, be- cause substantial increases in state spending on education are required and because the interests of different regions of the state are pitted against each other.

In at least a few states, the other branches reacted positively to the judicial mandate and sought to carry it out effectively. Some legislators in these states seized on their supreme court’s decision as an impetus for educational changes they supported. In New Jersey, in contrast, the supreme court and the other branches battled over changes in the funding system for twenty-five years before reaching agreement. At one point the supreme court issued an order that prohibited the state’s public schools from operating unless the legislature provided money for a new funding system.27 Although New Jersey was an extreme case, across the states inter-branch conflict over school-funding decisions has been more common than cooperation. And to the extent that judges insisted on compliance with their rulings, they aroused considerable resentment from legislators and governors.

Decisions that expand the rights of criminal defendants often require implementation by police and prosecutors, and this implementation may be highly imperfect. Legislators sometimes act to overturn these rulings altogether by proposing amendments to state constitutions, and interest groups sponsor initiative measures to achieve the same end. In both instances, the proposals must go before the electorate to win adoption. Be- cause criminal defendants and their rights are not especially popular, voters usually approve these proposals. By doing so, they reestablished the death penalty in Massachusetts and nullified decisions limiting the use of certain evidence against defendants in Florida and Pennsylvania. In California they did both.

Legislatures and voters have enacted an array of other laws that are unfavorable to defendants. Most of these laws are not aimed at specific court decisions, but they are often impelled by a perception that the courts are unduly lenient. This was one of the motivations for the “three-strikes” laws, which mandate long sentences for certain repeat offenders. About half the states en- acted three-strike laws in the 1990s, although these laws have had little impact on the severity of sentences in most of those states.29 Like some other measures adopted in response to the courts, these laws have served largely as symbols of unhappiness with the courts.

An episode in Massachusetts provides another example of the frictions that can arise over policy. The legislature refused to provide money for a voter- approved system of public funding for state election campaigns. After this refusal was challenged, the supreme court in 2002 required that the legislature provide the funding or repeal the law. The legislature balked, and in response the supreme court forced the sale of some state property. Legislators reluctantly provided some funding for campaigns in 2002, but in 2003 they re- pealed the law

State Courts in Their Political Environment

Challenging Judges at the Polls

Because the great majority of state judges must win new terms from the voters, elections are a powerful mechanism with which to influence what the courts do. Indeed, judges as a group seem to be increasingly fearful of electoral challenges based on the content of their decisions.

This fear can be understood in relation to the character of judicial elections. In contrast with contests for president, governor, and U.S. senator, most contests for judgeships are not very visible to the public. Voters typically go to the polls with only limited information about the candidates from whom they are asked to choose.

For sitting judges, this is mostly a favorable situation. Service in a judge- ship allows them to develop a degree of name recognition, and incumbents have advantages in garnering endorsements and campaign contributions. Still, even sitting judges may not be very well known, a condition that makes them vulnerable to strong campaigns by opponents.

The perils that face sitting judges depend largely on the election system in place. Judges at all levels do best in states with retention elections: asked simply to vote yes or no on a sitting judge, most voters who know little about the judge’s performance are inclined to cast positive votes. Between 1964 and 1994, judges who faced retention elections had a 99 percent success rate.

Judges do less well in partisan and nonpartisan elections that give the voters a direct alternative to the incumbent. This is especially true of partisan elections, in which people may vote for a challenger on the basis of party affiliation. In the 1990–2000 period, state supreme court justices were defeated 2 percent of the time in retention elections, 5 percent in nonpartisan elections, and 31 percent in partisan elections.32 Lower-court judges are less vulnerable to electoral defeat, but almost surely they too lose most often in states that elect judges on a partisan basis.

The 31 percent rate of defeat for Supreme Court justices in partisan elections, far higher than the rate for members of Congress, is noteworthy. The impact of partisan elections is reflected in Alabama and Texas. In both states growing Republican strength has benefited Republican candidates for judge- ships, who often defeat incumbent Democrats.33 In self-defense; some Democratic judges have switched parties.

Beyond partisanship, judges can suffer defeats for a variety of other rea- sons. One, of course, is unhappiness with their choices in deciding cases—either single decisions or a broader line of policy. There have always been judges who lose their positions or barely escape defeat because voters disapprove of their decisions. What has changed in recent years is the frequency with which judges face strong challenges based on the content of their decisions.

The harbinger of this development was the elections of 1986. In California, three supreme court justices lost retention elections after a well-funded campaign highlighted their numerous votes to overturn death sentences.35 In Ohio, the chief justice lost a nonpartisan election. His opponent emphasized allegations of misconduct by the incumbent, but those who supported the challenger cared primarily about reversing the supreme court’s liberal policies in tort law.

These kinds of challenges gradually became more common, and this trend has accelerated since the late 1990s. One source of this change is the growing use of independent campaigns by interest groups to support candidates in Supreme Court contests, usually by criticizing their opponents. Challengers and independent campaigns attack some judges for decisions that favor criminal defendants, attacks whose effectiveness is enhanced by the public’s conservatism on criminal justice issues. Other judges face opposition based on their positions on economic issues, especially tort law. Groups on both sides of these issues have sought to defeat incumbents. A major source of growth in campaign spending has been business groups, groups that oppose supreme court justices who take liberal positions in tort law. Since 2000, for instance, the U.S. Chamber of Commerce has spent millions of dollars in independent campaigns to remove such justices

Because economic issues divide voters far more than criminal law, campaigns motivated by economic issues are often couched in other terms. In 2004, for instance, a large-scale independent campaign was launched against a West Virginia Supreme Court justice, a campaign funded primarily by the chief executive of a coal company. That campaign emphasized the justice’s vote in a criminal case rather than the economic matters that motivated the campaign. The justice was defeated.

It is uncertain whether the growing frequency of issue-based campaigns against judges actually has produced higher overall rates of defeat for incumbents.39 But this trend has had two clear effects. The more direct effect is on the membership of supreme courts. In some states, including Alabama, Ohio, and Texas, the electoral successes of conservative groups and the Republican Party produced court majorities with conservative views on tort law and other economic issues. As a result, court policies on these issues have shifted.

The less direct effect is on the perceptions of incumbent judges, espe- cially those who serve on supreme courts. When judges lose their positions because of their votes and opinions in cases, when other judges have to battle hard to win new terms, a feeling of vulnerability spreads through the judiciary. Thus, to take one example, the 1996 defeat of a Tennessee judge in a retention election on the basis of a single death penalty decision attracted widespread attention and concern.40 That defeat exemplifies the special vulnerability of judges who cast votes or write opinions that favor criminal defendants. Judges with liberal positions on criminal justice issues may feel that they must choose between adherence to the policies they favor and security in their positions.

The size of campaigns for judgeships is growing at an accelerated rate, and the 2004 Supreme Court contests across the country stood out for the level of spending. In an Illinois contest for an open seat, the two sides spent more than $9 million.41 Meanwhile, the Supreme Court in 2002 loosened limits on the freedom of judicial candidates to raise policy issues in their campaigns, and the content of campaigns has begun to change in response to that decision.42 One result will be to increase judges’ fears that their decisions can make them vulnerable to defeat.

Judicial Tenure and the Other Branches

Judges who do not have to face the voters are not necessarily secure in their positions. In the eight states in which the other branches of government decide whether to retain judges in office, mostly on the East Coast, judges who displease the governor or legislature can be denied new terms.

It appears that such denials are uncommon, but judges in these states increasingly face scrutiny because of their decisions. In Virginia, where the legislature chooses judges, members of the Republican majority have questioned several judges about specific decisions before reelecting them.43 In states with gubernatorial appointment of judges, some judges have lost their positions as a result of governors’ unhappiness with their decisions. This apparently was the fate of two judges who were not reappointed by governors in the 1990s. One was a Delaware judge who had favored stockholders over corporate management in some cases; the other was a New York judge charged with excessive liberalism in criminal cases.

Judges who hold their positions for life still may be threatened with impeachment. Republicans in Congress have made such threats against some federal judges in recent years. In the states, the most consequential threat was against the chief justice of New Hampshire in 2000. David Brock was charged with misdeeds involving court procedures, but he had aroused legislators’ wrath with decisions holding that the state’s system for school funding was unconstitutional and disapproving some proposed changes in the system.45 Chief Justice Brock was impeached by the lower house of the legislature, but he was acquitted by the state senate.46 The Illinois legislature considered impeachment of Chief Justice James Heiple in 1997, citing his alleged misconduct on and off the court, but his unpopular set of rulings in a well-publicized child custody case helped spur this effort.47 In other states, such as Massachusetts, individual legislators have talked about impeaching judges whose decisions they disliked but have not achieved serious consideration of impeachment.

These incidents have not received as much attention as the issue-driven defeats of judges in elections. Still, they affect the thinking of judges whose careers depend on the other branches of government. Judges’ concern is enhanced by the fact that governors and legislators are more attentive to court decisions than the electorate.

In a few states legislators have discussed changes in rules of judicial selection and tenure as a means of retaliation or control. In Colorado, for instance, the president of the state senate in 2004 introduced a constitutional amendment that would have changed these rules in several ways, including a requirement that the senate confirm the governor’s choices for judgeships and the creation of term limits for the state’s judges.48 Officials in the other branches can also encourage the voters to remove judges, and governors have been successful in some removal efforts. For instance, the 1986 defeats of three California Supreme Court justices that served as a harbinger of the current era were strongly encouraged by Republican governor George Deukmejian.

Attacking Courts as Institutions

The other branches can put heat on judges in another way: through their powers over courts as institutions. Especially important are judicial budgets and jurisdiction to hear cases. The significance of these powers is suggested by two extreme examples of their use. Early in the nineteenth century, one state legislature apparently reduced the salaries of its supreme court justices to twenty-five cents per year.49 In the 1820s the Kentucky legislature abolished the supreme court and replaced it with a new court. When the old court con- tinued to operate in defiance of the legislative action, a two-year conflict en- sued. Ultimately, the legislature retreated by eliminating the new court.

Nothing even vaguely resembling these actions has occurred in recent years. On the whole, relationships between the judiciary and the other branches in the states seem reasonably placid. But friction between the branches over institutional issues has increased.

Some of the friction relates to judicial budgets. Like officials of administrative agencies, judges and court administrators tend to believe that their organizations are underfunded. To the extent that courts receive less money than they need, it appears that the primary reason is the constraints on spending that apply to state programs as a whole. However, legislators sometimes ex- press pique with court policies through their budgeting decisions. In a survey of chief court administrators in forty-one states in 1999 and 2000, fifteen administrators reported that legislatures had threatened to reduce the judicial budget “to influence or protest court rulings or policies,” and in eleven states legislatures had actually reduced the budget for that reason.

Occasionally the threat of retaliation for unpopular policies is quite di- rect. In 1991 the California Supreme Court upheld a provision adopted by the voters that reduced the state legislature’s budget by 38 percent. One house of the legislature reacted by cutting the court’s own budget by 38 percent, and the other house came close to agreeing on the cut.

Legislators sometimes threaten even more extreme action. In 2005 a Montana legislator who was unhappy with decisions of the state supreme court introduced a set of retaliatory bills. Among other things, the bills would have opened the court’s deliberations to the public, allowed the legislature and governor to overturn decisions that struck down state laws, and cut the justices’ salaries by 80 percent.53 Even when such bills go nowhere, they may raise concern within the judiciary.

Florida provides an especially good example of the growth in attacks on courts as institutions in some states.54 As the Republican Party gained legislative majorities and then the governorship in the 1990s, liberal decisions by the courts produced a good deal of unhappiness. Governor Jeb Bush was displeased with rulings that overturned some of his initiatives and policies that he favored, including a school voucher program and his use of a line-item veto. Then came the presidential election of 2000, after which Florida courts issued some rulings that supported Al Gore’s legal challenges to the election of George W. Bush. Although the Florida courts favored Bush with some of their decisions, the rulings on the other side aroused considerable wrath from state Republicans.

From the late 1980s on, Republicans in the Florida legislature presented an array of proposals to attack or rein in the state courts, especially the Supreme Court. Among other things, these proposals would have taken from the Supreme Court the power to issue procedural rules for the courts, allowed Governor Bush to add two justices to the Supreme Court, limited the Supreme Court’s jurisdiction, and established term limits for judges. The only significant proposal to win adoption was a 2001 statute allowing the governor to choose all nine members of the commissions that nominate the slate of candidates from which the governor appoints judges. But some other proposals received considerable support in the legislature, and the state’s judges undoubtedly recognized the displeasure of policymakers in the other branches.

The Impact of External Pressures on the Courts

If state judges are feeling greater pressure from the other branches of government and the voters, how does this pressure affect their choices on the bench? This is a difficult question to answer. Judges might be highly averse to the risk of negative responses in their political environment. If so, they would carefully avoid decisions that could provoke those responses. Alternatively, they might resolve to reach the judgments they see as the most appropriate and disregard the possibility of retaliation for those judgments.

It is clear that at least some judges worry a good deal about negative responses to their decisions. These worries are most pronounced when judges perceive a threat to their tenure in office. A series of studies indicates that some supreme court justices who feel vulnerable to electoral defeat minimize their votes to overturn death sentences.55 Another study found that Pennsylvania trial judges become more severe in their sentencing as they approach re- election.56 It is understandable that elected judges would respond to pressure in criminal justice, where public opinion is one-sided and strong. But one scholar concluded that judges take their political environment into account even in some fields that are less visible and controversial, such as unemployment compensation.

Still, the pressures of recent years have not deterred some judges from taking positions that could be expected to provoke strong opposition. The Supreme Court justices who questioned or struck down laws prohibiting same- sex marriage are a good example. It may not be coincidence that those justices all sat in states where they do not face the voters, but even so they were risking conflict with the other branches. And judges continue to overturn state systems to fund education and death penalty laws despite the likely political price.

In this respect as well, Florida provides an interesting case. Despite pres- sure from the governor and legislators, the state’s judges have continued to reach decisions that make these policymakers unhappy. For example, in 2003 the supreme court struck down a state law requiring that the parents of a young girl be notified before she obtained an abortion. (The decision was overturned by the voters in 2004.) In 2004 an intermediate appellate court struck down part of the state’s program assisting parents in paying tuition for private schools, an important initiative for Governor Bush.

The Florida courts also withstood considerable pressure in the long- running battle over the continuation of life-sustaining treatment for Terri Schiavo. With no dissent, courts at each level of the court system struck down a 2003 law that allowed the governor to issue a stay “to prevent the withholding of nutrition and hydration” from Schiavo.59 When this battle turned into a national issue in 2005, the Florida courts were pressed by legislators, Governor Bush, and even Congress to rule in favor of Schiavo’s parents. But in a series of rulings, the courts refused to intervene on the parents’ behalf.

Perhaps the Florida courts in recent years would have been even bolder in the absence of external pressure. In this instance, as in others, it is difficult to ascertain the impact of the political environment on judges’ choices. Still, it is clear that at least some judges are willing to accept political conflict as the price for adopting positions that they see as appropriate.

Conclusion

State courts have always stood in an ambiguous place in the states, partly but not completely insulated from politics. However, their place has shifted in recent years, with the other branches of government and the voters playing a more active role in overseeing the courts. As a result, the courts are less autonomous than in some earlier eras.

This development is understandable. In the current era state courts are important and highly visible participants in the making of public policy, and the content of their policies is often at odds with the views of other policy- makers and of voters. Moreover, changes in the character of state politics make courts and judges more vulnerable to scrutiny and criticism.

Although the autonomy of the courts has been reduced, it remains substantial. Serious attacks on the courts as institutions are threatened far more than they are carried out. With the major exception of Supreme Court justices in states with partisan elections, judges do rather well in winning new terms. Most grievances against the judiciary have no concrete effects on courts and judges.

One key question is the extent to which concern with the political environment affects judges’ choices as decision makers. Those effects are very difficult to measure. Even so, there is strong evidence that at least some judges take more pro-prosecution positions in criminal cases than they would in the absence of concern about voters and the other branches. To a lesser extent, the same may be true in some other areas of legal policy. But state judges continue to engage in policymaking that can be characterized as activist, often taking positions that they could expect to be unpopular.

It is important to keep in mind that the preponderance of what state courts do occurs out of sight of the voters and the other branches. Courts at all levels routinely make decisions that affect public policy without attracting much attention. Whatever the relationship between the courts and other institutions may be at a given time, this routine activity ensures that courts help to determine the state of government and politics in the states.

Notes

1. Throughout this chapter the term supreme court is used to refer to the highest court of each state. Most of these courts are called supreme courts, but there are some excep- tions. For instance, in New York the court called the supreme court is a lower court and the highest court is called the court of appeals. The supreme courts of Texas and Okla- homa hear only civil cases; each state has a court of criminal appeals that acts as the supreme court for criminal cases. Where Supreme Court is capitalized, without any state designation, it refers to the U.S. Supreme Court.

2. Altogether, eight states require sitting judges to win new terms through action by the governor, the legislature, or both. Thirty-nine states require judges to win new terms from the voters. (New York is counted in both figures, because some judges face the voters and others the governor and legislature.) Judges in three states—Massachusetts, New Hampshire, and Rhode Island—hold terms for life or until age seventy. In Hawaii, a commission determines whether to retain judges. This information is from Judicial Selection in the States: Appellate and General Jurisdiction Courts (Des Moines, Iowa: American Judicature Society, 2004).

3. RoySchotland,“JudicialCampaignFinanceCouldWork,”NationalLawJournal,No- vember 23, 1998, A21.

4. Bradley C. Canon, “A Framework for the Analysis of Judicial Activism,” in Supreme Court Activism and Restraint, ed. Stephen C. Halpern and Charles M. Lamb (Lexing- ton, Mass.: Lexington Books, 1982), 385–419.

5. Janine DeFao, “Judicial Activism on the Docket at Stanford Event,” San Francisco Chronicle, October 24, 2004, A7.

6. There is some disagreement about the extent of this conservatism. See Peter Karsten, Heart versus Head: Judge-Made Law in Nineteenth Century America (Chapel Hill: Uni- versity of North Carolina Press, 1997).

7. Lawrence Baum and Bradley C. Canon, “State Supreme Courts as Activists: New Doctrines in the Law of Torts,” in State Supreme Courts: Policymakers in the Federal Sys- tem, ed. Mary Cornelia Porter and G. Alan Tarr (Westport, Conn.: Greenwood Press, 1982), 83–108.

8. McCall v. Batson, 329 S.E.2d 741 (S.C. 1985).

9. That reversal is discussed in James A. Henderson Jr. and Theodore Eisenberg, “The Quiet Revolution in Products Liability: An Empirical Study of Legal Change,” UCLA Law Review 37 (February 1990): 483–488.

10. Bradley C. Canon, “Organizational Contumacy in the Transmission of Judicial Policies: The Mapp, Escobedo, Miranda, and Gault Cases,” Villanova Law Review 20 (No- vember 1974): 50–79.

11.Barry Latzer, “The Hidden Conservatism of the State Court ‘Revolution,’ “ Judicature 74 (December–January 1991): 190–197.

12. MatthewA.Nelson,“AnAppealinGoodFaith:DoestheLeonGoodFaithException to the Exclusionary Rule Apply in West Virginia?” West Virginia Law Review 105 (Spring 2003): 748–750.

13. ThomasP.BonczarandTracyL.Snell,CapitalPunishment,2003(Washington,D.C.: U.S. Bureau of Justice Statistics, 2004), 10.

14. JamesS.Liebman,JeffreyFagan,ValerieWest,andJonathanLloyd,“CapitalAttrition: Error Rates in Capital Cases, 1973–1995,” Texas Law Review 78 (2000): 1847.

15. The 2004 decisions were People v. LaValle, 817 N.E.2d 341 (N.Y. 2004); and State v. Marsh, 102 P.3d 445 (Kan. 2004). As discussed in an earlier note, the highest New York court is called the court of appeals, and it is this court that ruled against the death penalty.

16. SanAntonioIndependentSchoolDistrictv.Rodriguez,411U.S.1(1973).

17. See Karen Swenson, “School Finance Reform Litigation: Why Are Some State Supreme Courts Activist and Others Restrained?” Albany Law Review 63 (2000): 1147–82; and Douglas S. Reed, On Equal Terms: The Constitutional Politics of Educa- tional Opportunity (Princeton: Princeton University Press, 2001). The count of state supreme courts was based on lists in those two sources, updated with more recent de- cisions. In a few other states, lower courts have held that funding systems are unconsti- tutional but the supreme court has not yet ruled. The Kansas decision was Montoy v. State, 102 P.3d 1160 (Kan. 2005).

18. Simat Corp. v. Arizona Health Care Cost Containment System, 56 P.3d 28, 35–36 (Ariz. 2002).

19. Lawrencev.Texas,539U.S.558(2003).

20. The decisions were Goodridge v. Department of Public Health, 798 N.E. 2d 941 (Mass. 2003); Baker v. State, 744 A.2d 864 (Vt. 1999); and Baehr v. Lewin, 852 P.2d 44 (Hawaii 1993). Based on the Hawaii Supreme Court’s ruling, a trial court in the state held that Hawaii’s prohibition of same-sex marriage violated the state constitution. That decision was effectively overturned by a state constitutional amendment; the state supreme court confirmed that this was the effect of the amendment in Baehr v. Miike, 994 P.2d 566 (Hawaii 1999).

21. Virginia Gray and David Lowery, “The Institutionalization of State Communities of Organized Interests,” Political Research Quarterly 54 ( June 2002): 265–284.

22. Lee Epstein, “Exploring the Participation of Organized Interests in State Court Liti- gation,” Political Research Quarterly 47 ( June 1994): 335–351.

23. MorrisP.Fiorina, withSamuelJ.AbramsandJeremyC.Pope, CultureWar? TheMyth of a Polarized America (New York: Pearson Longman 2005).

24. Jon R. Bond and Richard Fleisher, eds., Polarized Politics: Congress and the President in a Partisan Era (Washington, D.C.: CQ Press, 2000).

25. Victor E. Schwartz and Leah Lorber, “Judicial Nullification of Civil Justice Reform Violates the Fundamental Federal Constitutional Principle of Separation of Powers: How to Restore the Right Balance,” Rutgers Law Journal 32 (2000–2001): 939–951.

26. The decision was State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 715 N.E.2d 1062 (Ohio 1999). This history is discussed in the court’s opinion and in Stephen J. Werber, “Ohio: A Microcosm of Tort Reform versus State Constitutional Mandates,” Rutgers Law Journal 32 (Summer 2001): 1045–1070.

27. Russell S. Harrison and G. Alan Tarr, “School Finance and Inequality in New Jersey,” in Constitutional Politics in the States: Contemporary Controversies and Historical Patterns, ed. G. Alan Tarr (Westport, Conn.: Greenwood Press, 1996), 178–201.

28. The final decision in New Jersey was Abbott v. Burke, 710 A.2d 480 (N.J. 1998). Responses to school-funding decisions are discussed more generally in Matthew H. Bosworth, Courts as Catalysts: State Supreme Courts and Public School Finance Equity (Albany: State University of New York Press, 2001); and Reed, On Equal Terms