Why the American Justice System is Fundamentally Flawed
Can American courts truly deliver fair and natural justice?
Every few years, millions of voters around the United States head to the polls in one of the world’s largest democratic exercises.
But they aren’t at the ballot boxes to elect state representatives, Congresspeople, governors, or the President — they aren’t electing politicians, for that matter.
They’re lining up to elect judges.
In the United States, approximately 90% of all state court judges are elected into office. Thirty-eight states hold elections for their Supreme Court judges; only seven states don’t carry out any form of popular judicial elections.
To the average American, judicial elections might not seem like a novelty. That’s because it’s a uniquely American phenomenon: the US is “virtually the only country in the world that selects judges by popular election.”
But to observers from most other countries, where judges are nominated or appointed, judicial elections are almost incomprehensible.
“No other nation in the world [elects judges],” said Sandra Day O’Connor, the former federal Supreme Court justice, “because they realise you’re not going to get fair and impartial judges that way.”
For justice to be served fairly, judges ought to be independent. This means that they must interpret the law and carry out their roles free from any external influences. But the practice of electing judges is by its very nature “antithetical to the notion of an independent judiciary,” because elections expose judges to these influences.
Accordingly, there are serious concerns as to whether American courts can truly deliver justice.
Judges aren’t politicians
To run for office, judges must carry out campaigns, solicit funding, and take positions on key issues — not too different from what politicians do on the trail. Like politicians, judges tackle issues with serious consequences for society, the economy, and democracy. As a consequence, they are treated as such by political actors and the public, which opens them up to similar pressures that politicians face.
The main pressure judges face is from special interest groups. Judges seek endorsements from these groups by taking positions or making promises in support of (typically partisan) special interests in order to garner support for election or reelection.
For example, special interest group Texas Right to Life — the largest and most influential pro-life group in Texas — endorsed judicial candidate Jimmy Blacklock for the 2018 Texas Supreme Court elections. He eventually won that election, which underscores the importance of gaining the support of these groups:
But when the Texas Supreme Court voted against a pro-life claim, Texas Right to Life promptly withdrew their endorsements for the Supreme Court justices involved, including Blacklock:
This shows how even after being elected into office, justices face pressure to hand down decisions which give effect to these special interests. If they don’t, as was the case here, they risk losing crucial endorsements — or even being ousted from office in the next election.
In 1986, three California Supreme Court justices — including Chief Justice Rose Bird — lost a judicial election after being attacked by special interest groups for their perceived refusal to uphold the death penalty.
Similarly, in 1996, ex-Tennessee Supreme Court justice Penny White was backed by special interest groups for her pro-death penalty stance. But because she cast the deciding vote to overturn a defendant’s death sentence, these groups rallied against her in the next retention election — which she consequently lost.
Importantly, White didn’t make a u-turn on her pro-death penalty stance at all: she just voted against handing it down in one particular case because of procedural impropriety in the lower courts. Yet she was falsely accused by these groups of not giving the defendant “the punishment he deserves.”
These examples demonstrate the unscrupulous pressure that elected judges are often forced to endure — and that special interest groups are only concerned with achieving their political objectives, even if the judge’s decision upholds fairness and avoids injustice.
“The more [corporate] campaign contributions a judge receives, the more likely they are to vote for business litigants appearing before them in court.”
Judges are also influenced by campaign contributors. One study found that “the more [corporate] campaign contributions a judge receives, the more likely they are to vote for business litigants appearing before them in court.” In fact, justices who receive the majority of their “contributions from [corporate contributors] would be expected to vote in favour of their interests almost two-thirds of the time.”
Furthermore, a New York Times investigation discovered that Ohio Supreme Court justices routinely sat on cases involving parties who contributed to their campaigns. On average, these justices voted in favour of their contributors 70% of the time.
Overdue for reform
Former Supreme Court Justice Sandra Day O’Connor said in 2010 that “[when] you enter one of these courtrooms, the last thing you want to worry about is whether the judge is more accountable to a campaign contributor or an ideological group than to the law.”
These findings and examples appear to confirm O’Connor’s prognosis: participating in partisanship and kowtowing to electoral pressure can significantly influence judicial decisions and thus the carriage of justice. Elections have provoked judges into behaving like politicians and have turned state judiciaries into political vehicles which serve these external actors before they serve justice.
But as current Supreme Court Chief Justice John Roberts wrote, “judges are not politicians […] And a state’s decision to elect its judiciary does not compel it to treat judicial candidates like [elected politicians].”
The judiciary is founded on principles of fairness, equality, and respect for the rule of law. The politicised condition of state courts creates a tension between political obligations and these principles — a tension which rightfully shouldn’t exist, if judicial independence is to be upheld. If judges are to navigate this tension, then outcomes can never be fair and independent and can thus only ever be unjust.
The state court judicial selection process is long overdue for reform, and the first step must be to abolish judicial elections.
