The Influence of Re-Selection on Independent Decision Making in State Supreme Courts

Abstract

Scholars have suggested that judges and justices engaged in collective decision making are strategic actors who base decisions on factors other than their sincere interpretation and application of statutory and constitutional principles. This paper examines whether re-selection methods — elections and re-appointments — imposed on most state Supreme Court Justices tempt them to act strategically to maximize their prospects of maintaining their positions. I report anecdotal evidence gathered from confidential interviews conducted with sitting and former state Supreme Court justices, which reveal common themes. I also explore whether the re-selection processes used for sitting state Supreme Court Justices encourage those justices to act strategically in dissenting and specially concurring to maximize their prospects of maintaining their positions. To do so, I identified sixty-five justices reselected in 2014 and then calculated the percentage variances in dissents/special concurrences filed by them the years before and after reselection. I separately examine those variances for criminal cases. This research suggests that while re-selection events may create a temptation for justices to make decisions in a way that preserves their positions, it is a temptation that is generally ignored.