The Complicated Business of State Supreme Court Elections: An Empirical Perspective

Abstract

Proponents of judicial elections emphasize existing First Amendment jurisprudence as well as the similarities linking publicly-elected state judges and other publicly-elected state officials. Opponents emphasize judicial campaign contributions’ corrosive effects, including their potential to unduly influence judicial outcomes. Using a comprehensive data set of 2,345 business-related cases decided by state supreme courts across all 50 states between 2010-12, judicial election critics, including Professor Joanna Shepherd, emphasize the potential for bias and find that campaign contributions from business sources to state supreme court justice candidates corresponded with justices’ pro-business votes. While Shepherd’s main findings largely withstand replication efforts, additional (and alternative) analyses introduce new findings that present complicating wrinkles to Shepherd’s strong normative claims. Findings from this study illustrate that efforts to influence judicial outcomes are not the exclusive domain of business interests. That is, judicial campaign contributions from non- (and “anti-“) business interests increase the probability of justices’ votes favoring non-business interests. As a result, critiques of judicial elections cannot properly rely exclusively on the influence of business interests. Moreover, both business and non-business interests can successfully influence judicial outcomes through campaign contributions point in different (and possibly conflicting) normative directions. On the one hand, even if one agrees that the judicial branch qualitatively differs from the political and executive branches in terms of assessing campaign contributions’ proper role, that the potential to influence judicial outcomes is available to potentially any interest group (willing to invest campaign contributions) complicates critiques of judicial elections. On the other hand, the same empirical finding also plausibly strengthens critiques of judicial elections, especially for those who view the judicial domain as distinct from other political domains.