Choose Your Judges

Why So Many Unopposed Supreme Court Justices?

February 20th, 2013

Seventeen states use retention elections for their Supreme Court Justices, meaning voters have a very limited choice: either keep the current Justice on the bench, or vote “no” and wait for the governor to appoint a new justice. These states are sometmes criticized by proponents of “contested” elections, which give voters a choice between two competing candidates. But in many so-called contested elections, voters have no choice at all, since the incumbent justice is running unopposed.

This year, over a million dollars has been spent so far on two races for the Ohio Supreme Court—and yet the election for the third contested seat this year has already been decided: Justice Paul Pfeiffer is running unopposed (for the second time in a row), with no Democrat even willing to challenge him. This is not an unusual occurrence: nationwide, out of 34 state Supreme Court races, 12 of them are unopposed—an impressive 35% of state Supreme Court Justices who will automatically be re-elected. Nor is this year atypical: a recent study by Professor Herbert M. Kritzer (published at 56 DePaul Law Review 423) shows that over the past twenty years, over 30% of the state Supreme Court races nationwide have been uncontested

By comparison, in the 2008 election, only 49 out of 435 House seats were uncontested—approximately 11% of the races. This is only one-third the rate of Supreme Court elections—and House elections involve many Congressional districts which are situated in overwhelmingly liberal or conservative areas, making it pointless to challenge to the dominant party. By contrast, most Supreme Court elections are statewide, like elections for Senator or Governor, which are rarely—if ever—unopposed. In 2010, there are thirty-seven Senatorial elections, and only one candidate is running unopposed; there are thirty-nine gubernatorial contests, and no candidate is running unopposed.

What is going on here? Supreme Court Justices wield considerable influence over a state’s laws, and the amount of money being spent on Supreme Court elections shows that parties and advocacy groups realize their importance. Perhaps potential challengers are deterred by the belief that incumbent Supreme Court Justices have an enormous advantage in these races (one argument is that most voters know very little about candidates running for Supreme Court, and so will tend to vote for the incumbent on the basis that he or she has more experience). But the incumbency advantage for Supreme Court Justices is actually much lower than for comparable races. Judges who challenge incumbents for Supreme Court seats have won approximately 25% of the time over the past twelve years. By comparison, only 8% of candidates who challenge incumbents for the United States House are successful, and only 5%-20% of those who challenge sitting Senators prevail.

In short, there appears to be room for quite a bit more competition in Supreme Court elections. For all the talk about judicial elections becoming overly political, over a third of the sitting Supreme Court Justices are so politically untouchable that the opposing party does not see any point in trying to unseat them. (Ironically, this includes the two justices up for re-election in the state of Nevada, where the ballot includes a proposal to switch from contested elections to retention elections. Voters in Nevada are likely to reject that proposal, since they want to retain their right to vote on judges—even though this year they have no choice whatsoever in their Supreme Court elections).

NPR Story on Illinois Supreme Court Race

National Public Radio aired this story about Chief Justice Thomas Kilbride in Illinois. Chief Justice Kilbride comes across as a reluctant warrior, pressed into battling for campaign dollars like a common politician by his aggressive opponents. The story also points out that he appears to be a successful warrior, having out-raised his opponents by a large margin.

Yet Another Strange Chapter Added to Saga of Michigan Race

Justice Robert Young, who is running for re-election to the Michigan Supreme Court, recently confirmed that he used the “N-word” when discussing a case in a private conference with other Justices. Young is African-American, and he claims he was merely making an “impassioned plea” regarding the rights and dignity of an individual involved in the case. Meanwhile, former Justice Weaver—whom Young and his Republican colleagues essentially forced off the court—is campaigning heavily against Young. Most recently, she reported that Young suggested beginning a letter to the director of a state agency by calling the director an “ignorant slut”—presumably a reference to Dan Akroyd’s recurring line in the old Saturday Night Live’s Weekend Update debates. Young says he cannot recall saying any such thing.

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