Melinda Gann Hall

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.

Electoral Politics and Strategic Voting in State Supreme Courts

This study suggests that state supreme court justices act strategically to minimize electoral opposition. In order to appease their constituencies, justices who have views contrary to those of the voters and the court majority, and who face competitive electoral conditions will vote with the court majority instead of casting unpopular dissents on politically volatile issues. Using probit, models were estimated of the effects of several types of electoral forces on death penalty votes from 1983 through 1988 in four southern state supreme courts. Results indicate that single-member districts, beginning at the end of a term, prior representational service, narrow vote margins and experience in seeking reelection encourage minority justices to be attentive to their constituencies by voting in accordance with constituent opinion. In essence, constituency influence in state supreme courts is enhanced by competitive electoral conditions and experience with electoral politics.

Measuring the preferences of state supreme court judges

The premise of this paper is that while the comparative study of courts can address some vitally important questions in judicial politics, these gains will not be secured without a valid and reliable measure of judge preferences that is comparable within and across courts. Party affiliation of judges is a commonly used but weak substitute that suffers from pronounced equivalence problems. We develop a contextually based, party-adjusted surrogate judge ideology measure (PAJID) and subject this measure to an extensive array of validity tests. We also consider the measures stability in predicting judge behavior over the course of the judicial career. As the results illustrate, PAJID offers a valid, stable measure of judge preferences in state supreme courts that is demonstrably superior to party affiliation in analyses of judicial decision-making across areas of law and across 52 state high courts.

Neo-Institutionalism and Dissent in State Supreme Courts

This study applies concepts derived from neo-institutionalism to coalition behavior in state supreme courts, using a pooled cross-sectional time series design. Neo-institutionalism embraces rational choice assumptions about human behavior, with particular attention to how institutional arrangements shape purposive behavior. From this perspective, dissent, or the tendency to form less than unanimous voting coalitions, is viewed not merely as the collective expression of individual attitudes or policy preferences or the result of structural characteristics of institutions but rather as a complex interaction of values and structures. A model incorporating variables derived from the neo-institutional perspective was estimated with GLS-ARMA and compared to an environmental model generated from past research. The amount of variation in dissent rates uniquely accounted for by the neo-institutional model is over six times that of the environmental model, while a composite model can explain more than one-third of the variation in state supreme court dissent rates for 1966, 1973, and 1981. More importantly, however, all the relationships posited by the neo-institutional approach are statistically significant and in the expected direction. An institutional approach guided by rational choice theory offers an important contribution toward developing a more refined understanding of judicial behavior.

Constituent Influence in State Supreme Courts: Conceptual Notes and a Case Study

This study examines the low rate of dissent in state supreme courts and argues that this trend might be accounted for, in part, by certain institutional arrangements. Specifically, in state supreme courts where justices are subject to re-election, perceived constituent values may suppress the expression of dissent on highly salient issues for certain types of justices. Instead of voting in accordance with their personal preferences, justices who have very strong ambitions to retain their positions, who perceive themselves to have views inconsistent with those of their constituents, and who find themselves in the minority on issues of high public visibility, may utilize the strategy of not dissenting in order to avoid being singled out for possible electoral sanction. A case study of the Louisiana Supreme Court, combining personal interviews with voting data, supports this proposition.

Toward an Integrated Model of Judicial Voting Behavior

This article is an initial step toward the development of an integrated model of judicial decision making. The study synthesizes elements derived from contextual and attitudinal perspectives by application of a neo-institutional perspective. The neo-institutional approach emphasizes the interaction of environmental forces and individual preferences with institutional rules and structures. Judicial voting on death penalty cases from 1980 to 1988 in four states are examined employing pooled probit analysis. The results indicate that institutional rules are important influences on judicial choice.

Predicting Challengers in State Supreme Court Elections: Context and the Politics of Institutional Design

In this article, we answer two important questions about the role of challengers in elections to the states’ highest courts: (1) under what conditions do incumbents draw challengers, and (2) do these same conditions influence whether the challengers entering these races have sufficient experience to pose a threat to the officeholders (i.e., are they quality challengers). While the factors related to each electoral contest and the forces characterizing the overall political climate of the state should affect the type of challenge, if any, we also expect institutions to matter. Specifically, factors governing the attractiveness of supreme court seats, as well as the formal means by which judicial elections are organized, all should serve to enhance or inhibit competition. In an analysis of all 146 partisan and nonpartisan elections to state supreme courts from 1988 through 1995, we find that competition from both inexperienced and experienced challengers is predictable from some basic information about the incumbents, the states, and the institutional context. Like legislators, judges can influence their chances of being challenged only to a limited degree. However, the states can increase or decrease competition to some extent by manipulating electoral system characteristics and a variety of factors that make supreme court seats more or less valuable. In fact, under certain scenarios, state supreme courts may be more democratic in character and function than is generally recognized or perhaps preferred.

Voting in State Supreme Court Elections: Competition and Context as Democratic Incentives

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.

Voluntary Retirements from State Supreme Courts: Assessing Democratic Pressures to Relinquish the Bench

This article assesses whether electoral vulnerability promotes strategic retirements in state supreme courts and, more generally, whether elections are more effective in promoting democratic control of the bench than believed. Results indicate that voluntary retirements are influenced by electoral considerations, but only when justices are retained in partisan or retention elections. With nonpartisan elections, these effects are absent. Through the lens of judicial reform, these findings suggest that some arguments for abandoning partisan elections and adopting the Missouri Plan may lack merit and that the premises underlying institutional design should be reconsidered. Moreover, studies of judicial choice must be attentive both to strategy and context.

Placing State Supreme Courts in State Politics

This essay places state supreme courts in state politics by tracking some of the major lines of research on these important institutions, documenting the importance of state supreme courts, and illustrating important variations among state supreme courts on a host of factors, including docket composition, the exercise of judicial review, litigant patterns, and turnover rates. Through analyses of original data on separation-of-powers relationships in the abortion controversy, it also provides a brief empirical demonstration of how courts influence and are influenced by the political and policy processes operating in the states, and how comparative research helps resolve fundamental controversies in political science. We conclude that there is a remarkable and unfortunate asymmetry between the political importance of state supreme courts and the attention given to them by the research community. Moreover, by capitalizing on the analytical advantages of comparative state judicial politics scholarship, scholars will be able to solve some of the most complex puzzles in the study of state politics.