This project evaluates whether television advertising and the changing electoral climate brought about by Republican Party of Minnesota v. White (2002) have had detrimental effects on voting in state supreme court elections. Almost universally, judicial elections - particularly expensive campaigns using attack advertising - are being condemned for having deleterious effects on citizens, judges, and courts. In fact, the consequences are believed to be so severe that leading advocacy groups are seeking to eliminate the practice of electing judges altogether. We examine these serious contentions by evaluating: 1) whether voters are “turned off” by aggressive campaigns and thus decline to vote and 2) whether broad interpretations of White have reduced citizen participation by poisoning the electoral climate with political messages and other campaign activities unbefitting judges. In doing so, we control for factors beyond campaigns that influence the propensity to vote. Our specific focus is on partisan and nonpartisan supreme court elections from 2002 through 2006. We also use CMAG advertising data and official campaign finance reports, to distinguish the effects of campaign spending generally from television advertising in particular. Overall, we find no evidence that citizen participation is influenced by advertising exposure or by contrast or promote ads. Voting also is not influenced by broad interpretations of White allowing greater latitude for political speech. However, attack ads increase citizen participation. These findings of the mobilizing effects of attack advertising highlight the striking similarities between supreme court elections and elections to other important legislative and executive offices and add to a formidable body of empirical evidence demonstrating that the sharp attacks on judicial elections merit careful scrutiny and critical reassessment.
This research note assesses whether the nature of an appellate court's docket, mandatory or discretionary, affects judicial voting. It is hypothesized that a discre tionary docket facilitates the expression of personal policy preferences in decisions, while a mandatory docket suppresses the influence of judicial preferences. Therefore, policy preferences should have a greater impact on cases from a discretionary than a mandatory docket. A manifestation of the impact of personal preferences is dis agreement in voting, which is reflected in certain statistical coefficients. Using all cases decided by the Louisiana Supreme Court from June 1980 through May 1981, and comparing voting patterns from the discretionary civil docket to those from the mandatory criminal docket, cases on the discretionary docket produce a significantly higher level of dissent than cases on the mandatory docket. However, no obvious differences are evident in the cumulative scaling coefficients of the nonunanimous cases from the two dockets. It is concluded that, indeed, docket type affects judicial voting. Mandatory dockets inhibit the expression of policy preferences in the sense that justices agree on the outcomes of a high percentage of cases presented by these dockets. Likewise, discre tionary dockets introduce issues which encourage the expression of differences of opinion among the justices. However, there is no evidence to suggest that a manda tory docket is sufficient to eliminate the effects of policy preferences or that a discre tionary docket produces the unrestricted expression of policy preferences in deci sions.
In this paper, we investigate one highly significant aspect of the role of money in judicial elections: whether campaign spending increases citizen participation in the recruitment and retention of judges. Specifically, by using a two-stage modeling strategy that allows us to separate the mobilizing effects of challengers from the effects of money, we assess systematically whether relatively expensive campaigns improve the chances that citizens will vote in the 260 supreme court elections held from 1990 through 2004 in eighteen states using partisan or nonpartisan elections to staff the high court bench. We find that increased spending significantly improves citizen participation in these races. Whether measured as the overall spending in each election or in per capita terms, greater spending facilitates voting. We conclude, contrary to conventional wisdom about the deleterious effects of money in judicial elections, that campaign spending should serve as a means to enhance perceptions of courts by involving greater proportions of voters in the electoral process - perhaps the most powerful legitimacy conferring institution in democracy. Rather than alienating voters, expensive campaigns should strengthen the critical linkage between citizens and the bench by giving voters greater ownership in the outcomes of these races.
This study demonstrates that state supreme court justices are influenced by their specific electoral backgrounds and experiences, as well as general electoral conditions, when voting to uphold or overturn death sentences in the capital murder cases before their courts. Although previous research has established that electoral forces affect justices' decisions not to dissent, this article suggests that electoral variables also influence justices' decisions about who actually wins or loses the cases. On the basis of a probit analysis of death penalty votes in four supreme courts (Kentucky, Louisiana, North Carolina, and Texas) from 1983 through 1988, this study finds that single-member districts, narrow vote margins, being at the end of a term, and experience with electoral politics are associated with support for the death penalty, the position favored by the voters in these states. In addition, the model reveals that prosecutorial experience, term length, and murder rates within states also affect support for the death penalty. Most basically, the goals of judicial actors include personal as well as policy considerations, and the pursuit of these goals is promoted or inhibited by particular types of institutional arrangements.
In this study we evaluate the generalizability of the attitudinal model as explicated in the United States Supreme Court by assessing the extent to which state supreme court justices' responses to case facts are conditioned not only by their ideological preferences but also by the political environments within which the cases are heard. Using probit analysis, we examine the votes of supreme court justices in eight states (Arizona, California, Illinois, Kentucky, Louisiana, North Carolina, Ohio, and Texas) from 1983 through 1988 in the death penalty decisions issued by these courts. We find that justices do not respond uniformly to certain case facts when deciding between sentences of life or death for defendants convicted of capital crimes. Instead, justices' responses to case facts vary according to their individual partisan preferences and the ideological climates within which they operate. In other words, contextual forces are important direct and indirect influences on judicial behavior, and the attitudinal model must be modified for application to other courts. To formulate a singular theory of judicial choice necessitates an appreciation for the importance of courts' external operating environments as significant influences on judicial choice. Through comparative research designs and models that include microlevel and macro-level forces (including political context), scholars will be able to build models that transcend particular judicial institutions and that better represent the complexity of the judicial calculus.
To offer insight into the complex relationship between democratic processes and the judiciary and to expand knowledge about elections, this article examines ballot roll-off in 654 supreme court elections in 38 states from 1980 through 2000. Specifically, I evaluate the extent to which voter participation is responsive to competition, incumbency, and contextual forces that increase salience and information. Results indicate that voting is highly responsive to these factors. Thus, supreme court elections bear a striking resemblance to elections for other offices and may be effective under certain circumstances for promoting democratic control of the bench. Further, contextual forces have an important impact on citizen participation and must be included in satisfactory accounts of electoral politics. From a practical perspective, replacing partisan elections with nonpartisan or retention elections has the unintended consequence of inhibiting voting, even when nonpartisan elections are contested. Thus, some criticisms of judicial elections are a self-fulfilling prophecy.
Nasty, below-the-belt campaigns, mudslinging, and character attacks. These tactics have become part and parcel of today's election politics in America, and judicial elections are no exception. Attacking Judges takes a close look at the effects of televised advertising, including harsh attacks, on state supreme court elections. Author Melinda Gann Hall investigates whether these divisive elections have damaging consequences for representative democracy. To do this, Hall focuses on two key aspects of those elections: the vote shares of justices seeking reelection and the propensity of state electorates to vote. In doing so, Attacking Judges explores vital dimensions of the conventional wisdom that campaign politics has deleterious consequences for judges, voters, and state judiciaries. Countering the prevailing wisdom with empirically based conclusions, Hall uncovers surprising and important insights, including new revelations on how attack ads influence public engagement with judicial elections and their relative effectiveness in various types of state elections. Attacking Judges is a testament to the power of institutions in American politics and the value of empirical political science research in helping to inform some of the most significant debates on the public agenda. This book's results smartly contest and eradicate many of the fears judicial reformers have about the damaging effects of campaign negativity in modern state supreme court elections.
This project evaluates whether televised attack advertising has detrimental effects on the electoral performance of state supreme court justices seeking reelection. I examine this question by estimating theoretically specified models of vote shares that include all televised messages for incumbents and challengers in 76 partisan and nonpartisan elections in nineteen states from 2002 through 2006. I also rely on CMAG advertising data and campaign finance measures to disentangle the effects of advertising from campaign spending. Results show that attacks have deleterious effects on the incumbency advantage but only in nonpartisan elections. In this regard, the preference for nonpartisan elections among many reform advocates has rendered some concerns about the pernicious effects of negativity into self-fulfilling prophecies. More broadly, these findings demonstrate the powerful force of institutional arrangements in shaping democratic politics and highlight striking similarities between state supreme court elections and elections to other important offices in the United States.
The power of courts to thwart the will of the popularly elected branches of government and to stand in direct contradistinction to the dominant political alliance has fascinated scholars of American politics since the nation's inception. Although courts have been idealized as barriers to majority tyranny because of their seeming willingness to confront legislative majorities through the power of judicial review, serious questions have been raised about the actual nature of courts' countermajoritarian function and, in particular, the conditions under which courts are willing to challenge legislative majorities. When are courts likely to take on legislatures in the game of separation of powers/checks and balances? Or, stated more broadly, to what extent are courts autonomous institutions whose functions are impervious to conditions in the external political environment? After all, the countermajoritarian function and the autonomy of courts are hampered if courts, or the individual judges casting votes in the cases, fear legislative sanctions and defer to legislative preferences to avoid them. This Article seeks to explore fundamental questions about the nature of inter-institutional conflict by examining all cases decided since Roe v. Wade(1) by state supreme courts in which direct challenges to state statutes regulating abortion services were raised. As institutions with a diversity guaranteed by jurisdiction, state supreme courts are subject to virtually every force likely to affect judicial choice.(2) Consequently, they offer an ideal laboratory for testing relevant contextual hypotheses. Similarly, the abortion issue provides a manageable, yet highly charged, specimen with which we can conduct our analysis.(3) In response to concerns about the basis of inter-institutional conflict with the courts, two different conceptualizations of courts as institutions have emerged in the scholarly literature based on studies of the United States Supreme Court.(4) First, scholars working within the framework of attitudinal theory have posited that the Supreme Court is a highly autonomous institution whose decisions essentially reflect the aggregation of preferences of its members.(5) Because various institutional arrangements (e.g., lifetime tenure) insulate the Court from sanctions, the Supreme Court lacks incentives to respond to forces in the external environment, including Congress, except on the rarest of occasions.(6) Given the highly insular nature of the Court, individual justices are free to cast votes in accordance with their preferences on issues of public policy.(7) Therefore, the Supreme Court only overturns statutes under conditions where the preferences of the Court majority and Congress merely conflict, without reference to exogenous factors.(8) Alternatively, scholars working within the rational choice framework have offered another conceptualization of the relationship between the Supreme Court and Congress that poses a serious challenge to the widely accepted principle of judicial autonomy and purely attitudinal voting.(9) Positive theorists have argued that even when preferences conflict, the Supreme Court frequently will acquiesce to the legislative majority when the Court anticipates some possible reprisal or sanction for its actions.(10) One particularly important reprisal is subsequent statutory revision. Stated differently, positive theorists model the preferences of Congress as a significant constraint on judicial choice in the nation's highest court, and the power of Congress as a limit on the autonomy of the Supreme Court.(11) While these two alternative perspectives on the status of the United States Supreme Court will continue to be debated as new evidence is brought to bear on the issue, some very recent research raises serious doubts about the utility of models derived from positive theory for explaining the Supreme Court's interaction with Congress.(12) In a highly thought-provoking paper, Jeffrey Segal presents a convincing case that assumptions about the insularity of courts are theoretically sound and empirically correct for the Supreme Court, even in matters of statutory interpretation. …
