By Kevin Frazier
The Politics of the Judiciary
What question should voters answer when evaluating whether to retain a justice on their state’s court of last resort? Some voters may ask whether the justice’s individual decisions align with their own policy preferences. Other voters—in fact, likely a majority of voters—will simply ask whether the justice has been endorsed by the leaders of the voter’s party.
Both of these questions though produce troubling incentives for justices in the sixteen states that hold such elections. To answer those questions in a way that increases odds of electoral success, justices cannot ignore what California Supreme Court Justice Otto Kaus famously referred to as the “crocodile in your bathtub”—in other words, retention elections inevitably result in justices considering how voters will respond to their decisions in controversial cases.
Yet, a judicial practice exists that would take some teeth out of the crocodile or reduce the extent to which a justice factors public opinion into their adjudication of even the most contentious disputes. The independence afforded to the judiciary by adoption of this practice would result from voters being prompted to ask a different question in retention elections, “Do I approve of the court as an institution?” How justices attempt to answer this question aligns with the importance of the popular perception of an impartial and independent judiciary.
This practice is the issue of per curiam opinions—opinions authored “by the Court” rather than by an individual justice. I refer to such opinions as “By the Court Opinions” because latin phrases do little to facilitate discourse among scholars and, especially, members of the public.
By the Court Opinions
By the Court Opinions are not some novel development. Many of the earliest decisions by the U.S. Supreme Court were authored “By the Court,” or under Chief Justice John Marshall’s name—who claimed to be writing “for the Court.” The comparative infrequency of individually-authored majority opinions, dissents, and concurrences reflected common law norms. For instance, according to Professor Karl ZoBell, the highest appeals court in England available to disputes raised by colonists in America refrained from issuing individual opinions. Instead, the Privy Council announced its decisions as the decision of the whole even if a minority of the court disagreed with the outcome. Not until the mid-twentieth century did it become common for U.S. Supreme Court Justices to write individually as an attempt to make their mark on the law and, perhaps, to bolster their personal reputation.
Nevertheless, perhaps due to the modern trend of turning judges into celebrities, it seems hard to imagine any court of last resort relying on By the Court opinions. Denying justices a chance to express their individual interpretations does come at a cost, but, as pointed out by James Markham, the corresponding benefits of By the Court opinions outweigh those costs:
“Having a Justice’s name attached to an opinion brings a measure of accountability and control to an otherwise secretive institution, but this accountability carries with it a cost in the Court’s ability to appear independent and above the political fray, and detracts from the notion of the Court as something greater than the nine individuals who comprise it.”
Costs and Benefits
Markham argues that the increase in independence makes up for any losses to accountability, despite the fact that U.S. Supreme Court Justices serve for life—preventing them from ever having to face the crocodile in the bathtub. Given that state supreme court justices who face retention elections do not escape such scrutiny, the losses to accountability brought on by By the Court Opinions are partially mitigated when compared to their use by the U.S. Supreme Court.
Professor Ira Robbins weighs the costs and benefits of By the Court Opinions differently than Markham, even in the context of their use by justices who face retention elections. Robbins maintains that voters deserve as much information on a judicial candidate as possible, such as their stance on individual cases, to decide whether to retain them. However, Robbins’s argument fails to consider that, in practice, voters tend to make their decisions in retention elections without consulting sources that would detail the qualifications of the justice and the caliber of their decisionmaking. “Voters,” as summarized by Professor Dmitry Bam, “tend to show up to vote without having any knowledge about the judicial candidates or the issues at stake.”
Robbins also does not address the fact that a justice’s position on any one case may reflect myriad factors other than those that would allow a voter to determine if the justice shared their views on a particular issue.
Reducing Politics in the Judiciary
Judicial elections have become more competitive in recent years but that competition has not resulted in an across-the-board increase in awareness of state supreme courts and their justices. Instead, special interests—those who pay attention to which justices author which opinions and for what reasons—have become disproportionately invested in shaping state supreme courts. These biased actors have vested interests in mobilizing voters to kick out qualified justices merely because that justice issued a single opinion against their specific needs and wants.
Assuming judicial elections will only become more competitive, it’s increasingly important to consider what practices can diminish reactive and unduly partisan evaluations of judicial candidates. By the Court Opinions can refocus judicial elections on the quality of a court’s decision making rather than on the “correctness” of any one decision by a judge in a controversial case. This practice requires more study, but is certainly worthy of analysis given the vital role of an independent judiciary to our democracy.
About the Author
Kevin Frazier will join the Crump College of Law at St. Thomas University as an Assistant Professor starting this Fall. He currently is a clerk on the Montana Supreme Court.
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