As anyone who’s followed judicial elections for the past 10 years could have predicted, the Citizens United decision, striking down limits on corporate campaign spending, is likely to unleash a virtual run on judicial elections in some states. Judicial elections — especially for state Supreme Courts — have become been ugly, bitter, partisan battles in which millions of dollars are spent, largely to unseat incumbents in many states. The result is a judiciary that lacks the appearance and in some instances the reality of impartiality required by the Constitution. The Supreme Court has played a huge role in intensifying this problem – beginning with the Court’s ill-considered 5-4 decision Republican Party of Minnesota v. White in 2001. In that case, the Court struck down state rules that forbade candidates from judicial office from announcing their views about contested legal issues that might come before the court. Writing for the majority, Justice Scalia conveniently saw only the First Amendment dimensions of the case and none of the 14th. Yes, judicial candidates have free speech rights. But those rights should have been balanced by the countervailing due process rights of litigants to appear before an impartial tribunal. Instead Justice Scalia, and Justice O’Connor writing in her concurrence, took the position that if states are unwise enough to elect their judges, they will simply have to take their medicine and drop rules that attempt to mediate between the free speech rights of candidates and the public right to a bench that looks and is impartial. O’Connor in particular seemed to think that the Court’s decision in White might encourage states to abandon judicial elections in favor of merit selection.
But the decision by states to elect their judges was a deliberate, conscious choice. In the mid 1800s the spread of Jacksonian Democracy convinced populists that state court judges were too removed from the public, and too often appointed from the wealthy classes. They sought a judiciary that would be accountable to the public. That same populist streak has kept judicial elections alive (in at least some form) in 38 states.