Critics of judicial elections have traditionally argued that such elections are insipid events marked by low levels of participation and low levels of information. Under such conditions, it is difficult to imagine elections that achieve their stated goal of promoting accountability to the citizenry.
More recently, political scientists have challenged this portrayal of judicial elections, noting changes in levels of competition and styles of campaigning. Scholars have indicated these changes in campaigning precipitate accountability. For example, work by Melinda Gann Hall suggests judicial election outcomes are sensitive to state murder rates, with crime being a salient judicial issue, and Paul Brace and Brent Boyea have shown that elected judges’ votes to overturn capital sentences are dependent on state public opinion toward the death penalty. In both cases, I find their evidence strong and convincing.
Yet, surveys still show that most individuals know relatively little about the workings and decisions of their state courts. How can judicial accountability occur in such a setting?
Teena Wilhelm and I have recently posted a paper on SSRN with a possible resolution to this problem–elected state supreme court judges are indeed accountable under certain circumstances, specifically on cases that are highly visible. On less visible (but still often important) cases, justices sense a longer electoral leash. Judges who do not face contestable elections are generally less sensitive to public opinion and more inclined to vote on the basis of their personal ideology. In this way elected judges seem to behave much like members of Congress, who vote with their constituency on salient issues, but are often swayed by personal or partisan considerations on less visible votes.
