Judicial Independence and Retention Elections

Abstract

Judges face retention elections in over a third of U.S. state courts of last resort, numerous lower courts, and the Supreme Court of Japan. According to conventional wisdom, these elections engender judicial independence relative to contestable elections. We argue that in the context of modern judicial campaigns retention elections pressure judges to cater to public opinion on 'hot-button' issues that are salient to voters. We further suggest that judges facing retention elections should be at least as likely as judges facing partisan elections to cater to public opinion. Analyzing new data on abortion cases decided by state supreme courts between 1980 and 2006, we test these arguments as well as compare retention systems to contestable nonpartisan ones. The results refute the conventional wisdom, and suggest that retention elections encourage judges to respond to shifts in public opinion on hot-button issues such as abortion.