State Supreme Courts in American Democracy: Probing the Myths of Judicial Reform

I address the controversy over how judges should be selected by analyzing the electoral fortunes of incumbents on supreme courts from 1980 through 1995 in the 38 states using elections to staff the bench. Court reformers argue that partisan elections fail to evidence accountability, while nonpartisan and retention elections promote independence. Thus, issue-related or candidate-related forces should not be important in partisan elections, and external political conditions should not be important in nonpartisan and retention elections. Results indicate that reformers underestimated the extent to which partisan elections have a tangible substantive component and overestimated the extent to which nonpartisan and retention races are insulated from partisan politics and other contextual forces. On these two fundamental issues, arguments of reformers fail. Moreover, the extraordinary variations across systems and over time in how well incumbents fare with voters, which bear directly upon the representative nature of elected courts, merit further explanation.