How dangerous is campaign activity to the legitimacy of American courts? Here is what one of the most prominent analysts of campaigning and elections predicted back in 2002:
“The spread of negative campaigning in judicial races is likely to have adverse consequences for the court system,” Shanto Iyengar wrote in an Indiana Law Review article. “The motives of judicial candidates will be cast into doubt, and public esteem for the judiciary will suffer. Not only will candidates for judicial office be equated with ordinary politicians, but the impartiality, independence, and professionalism of the judiciary will also be called into question. Large-scale advertising in state judicial elections will further politicize state courts in the eyes of the public.”
If this scenario did indeed come to pass, the American state judiciaries—the workhorse of litigation in the United States—would be seriously undermined and compromised. Because the empirical evidence necessary to substantiate these fears is so limited, this study was conceived and executed. What follows is an excerpt from my forthcoming book, “Judicial Elections: The Surprising Effects of Campaigning on Judicial Legitimacy.” My goal was to examine the consequences of electoral activity with a research design tailored to answer some of the key empirical questions about elections and legitimacy.
In order to be able to make causal claims about campaign causes and legitimacy effects with a high degree of confidence, this project employed the two major cornerstones of causal inference: experiments with random assignment of respondents to treatments and dynamic analysis of change over time. In order to overcome the limits of non-representative samples and unknown generalizability, the research design employed a representative sample of the adult residents of the state of Kentucky (and for more limited purposes, a nationally representative sample).
There are still limits to this project—only some of my results from Kentucky have been replicated with nationally representative data—but the empirical basis of the substantive conclusions I draw in this book is perhaps as strong or stronger than any prior study of judicial campaigns and elections.
The most important conclusion: judicial campaign activities do not seem to damage the legitimacy of those courts that select their judges through popular elections. This is an unexpected finding and a bold conclusion. A recap of the evidence supporting that conclusion is therefore in order.
Judicial Elections and Legitimacy
I have found that judicial elections directly contribute to the legitimacy of courts, most likely by reminding citizens that their courts are accountable to their constituents—the people. The American people generally prefer that the balance between accountability and judicial independence be tilted toward the accountability end of the continuum, so it is not at all surprising that elections would have this effect. In assessing the impact of campaign activity on judicial legitimacy, analysts must begin by recognizing that all such activity must be evaluated in relationship to the legitimacy-boosting effects of electoral accountability.
How much legitimacy do the elected high courts in the American states enjoy? Because the vast majority of judges in the United States are subject to some form of electoral accountability, it is therefore not surprising that state courts in this country are widely accepted as legitimate institutions.
I readily admit that the evidence for this conclusion is perhaps not as strong as it might be, but it seems that somewhere around three-fourths of the American people extend legitimacy to their state judicial institutions. Indeed, state high courts seem to be as legitimate as the venerable United States Supreme Court. Critics of elections might view this figure as low—in comparison to 100 percent—and might argue that there has been a slow and steady erosion from unanimity over the course of years of judicial elections.
My own view is quite the contrary. Legitimacy is not the natural state of affairs in politics. The natural state of affairs more likely involves approving of institutions that generate benefits and disapproving of those that do not, perhaps even through some sort of simple running tally of likes and dislikes.
Over time, however, relative satisfaction with the performance of an institution goes through a metamorphosis, changing into a more fundamental commitment to accept the decisions of institutions, even when those decisions are objectionable. It is this very quality that makes legitimacy so valuable as a form of political capital; legitimacy convinces losers in law and politics to accept loses (e.g., Democrats in Bush v. Gore). That any institution acquires this power is wondrous.
When people know that they have the power to turn out judges who perform poorly, they are more willing to accept the decisions of those judges. From this perspective, elections slowly build the legitimacy of courts, rather than slowly eroding that legitimacy.
This research obviously cannot answer this much larger question of where legitimacy comes from and whether state courts start from a base figure of zero or 100. It does, however, provide some evidence that at least one election in at least one state has legitimacy-enhancing properties. And I can conjure no logic to suggest that it would be otherwise in states other than Kentucky.
This study also goes some distance toward understanding how elections work their magic. Contrary to the views of some, citizens want to know the policy views of those who are candidates for state courts of last resort, and they are pleased when provided this sort of information. It seems clear that the American people recognize an appropriate policy-making role for courts—perhaps as an inevitable consequence of the Common Law System—and are not of-put by this function. It also seems clear that the American people do not view judges as mechanical jurisprudes. Thus, the logic of electoral legitimacy might thus go something like this:Inevitably, supreme court judges are exercising discretion in deciding cases and making public policy. In making decisions, judges cannot but rely upon their own political and ideological values. In a democratic political system, these value-based decisions should comport with the will of the majority. For the majority to get its way on many (if not most) issues of public policy is not necessarily to trample upon the “inalienable” rights of the minority. Thus, elections are desirable because they ensure that judicial public policy is accountable to the preferences of the people, at least on most substantive issues of law and politics.
If in fact judges are making decisions with no technically or legally “correct” answer (Is the death penalty cruel and/or unusual?), then judges must side with the values of the majority or the minority. Obviously, in a democracy, minorities cannot expect to control public policy on all issues of the day. Where one draws the line may be subject to some debate—the voting rights of minorities, for example, should not be limited by the majority—but in a democracy many, if not most, ordinary public policy disputes ought to be resolved in favor of the preferences of the majority. When courts are responsive to the majority—or even perceived to be responsive—legitimacy accrues.
Such an argument may have a rebuttal, but I suspect the elemental logic of this position is attractive to many, if not most, Americans. If so, it follows that voters in judicial elections have the right to query candidates about their policy views on important socio-legal issues likely to come before the high court. In terms of the independence–accountability continuum, I suspect that most Americans favor getting more accountability from their judges rather than giving their judiciary more independence.
Policy talk enhances accountability and thereby contributes to institutional legitimacy. It may well be that the American people accept this policy-making role of courts precisely because most judges are subject to the controlling force of elections.
Ultimately, the majority in Republican Party of Minnesota v. White was probably correct about at least one thing: If elections are employed as a means of selecting judges, then the elections must be legitimate, and all campaign activity that is allowed in elections for other offices must be tolerated in elections for judges. Critics complain that it is nearly impossible to do away with elected selection/retention systems because most Americans favor such processes for selecting their judges.
Perhaps this is so. But to restrict policy talk among candidates for public office seems to strike at the very essence of elections and at the means of selecting policy makers in a democratic political system. Talking about legal policies may be a crucial element of the legitimacy-enhancing electoral process. My finding that stating one’s policy position in judicial elections does not undermine judicial legitimacy will be surprising only to those analysts believing that the American people want more independence from their judges than accountability.
Campaign Ads and Contributions
From the point-of-view of ordinary citizens, complaints about policy talk in judicial elections are generally unwarranted. Complaints about scurrilous and churlish campaign activities, however, may not be entirely unfounded. The evidence of this book is that judicial campaigns can indeed “cross the line” of appropriateness, and when they do so legitimacy suffers.
I acknowledge that my evidence is not unequivocal (in part because this portion of the analysis used real campaign ads, which always convey a mix of messages to viewers), but it appears that the line that gets crossed is that between ordinary politicians and judicial politicians. It is not politics per se that is objectionable; the American people recognize and accept the inherently political nature of courts.
Instead, it is a particular type of politics—the politics associated with legislatures in particular—that threatens judicial legitimacy. To the extent that judges are perceived as principled, rather than self-interested, politics is not damaging to courts. Some ads, however, portray courts as “just another political institution,” as indistinguishable from the other branches of government, and doing so seems to shift courts from being perceived as principled policy makers to self-interested and strategic makers of public policy.
I observe this effect with highly politicized campaign ads in Kentucky. If I am right about this, then it is not the innuendo and half-truths that do the damage (characteristics that are so offensive to legal scholars and analysts) but rather the framing of courts as being little different from other political institutions.
Understanding better how citizens categorize various political institutions—and how they associate different attributes with different institutions—is a research problem of considerable importance for future investigations of courts. My evidence on attack ads is that even moderately churlish ads have only minor consequences for judicial legitimacy.
Campaign contributions, however, are another matter. Perhaps the two simplest findings of this research are that policy talk is good for judicial legitimacy, but campaign contributions are decidedly not. The American people seem to accept serious debate about legal policy, even debate that is rough and not entirely fair. What they find objectionable is debate that is insincere and self-interested, especially when connected to campaign supporters and contributors.
This conclusion should first be placed in cross-institutional context. The damage of campaign contributions is no greater in the judiciary than it is in the legislature. As a consequence, any proposed palliative ought to be applied to both institutions (and executives as well), not just to courts. The findings of my book also demonstrate just how important it is to consider individual differences in the normative expectations citizens hold of campaign activity.
The American people are not uniform in their conceptions of what constitutes a good judge, with a substantial minority willing to endorse a fairly politicized view of judging. Statements such as “policy X will cause the American people to lose confidence in their courts” ignore the fact that people differ on which policies are inappropriate and threatening to judicial legitimacy.
We can only understand the consequences of campaign activity by comparing perceptions of those actions with normative expectations about how judges ought to behave. Failure to do so leads to gross misestimates of the consequences of campaigns and elections.
Perhaps the single expectation about which there is widespread agreement is that judicial elections ought to continue to be held. Elections boost legitimacy, and they do so even when we discount that boost by the effects of objectionable campaign activity.
Undoubtedly, the most important conclusion of the book is that campaign activity must be considered within the context of the legitimacy enhancing effects of elections, and that at least in Kentucky the costs of untoward campaign activity were small in comparison to the benefits of electing judges. Thus, the net effect of electing judges is to inject state courts with enhanced institutional legitimacy. My bet is that this positive net effect of elections is commonplace, but additional research on this question is essential.
James L. Gibson is the Sidney W. Souers Professor of Government at Washington University in St. Louis and the author of “Electing Judges: The Surprising Effects of Campaigning on Judicial Legitimacy.”