ALMOST all state court judges are subject to some sort of popular election to attain or retain office. In some states, judges are selected by competitive elections (some partisan, some nonpartisan), much like those for other public offices. In other states, judges are initially appointed, putatively by merit selection, and then undergo periodic retention elections, where they run against themselves and must obtain a majority (or more) of the votes cast to retain their seat. In a few states, some judges are appointed for terms and do not face retention elections. There is substantial evidence that, for a variety of reasons, both competitive and retention elections, especially at the state supreme court level, have since the 1980s become more contentious, expensive, and salient to voters and interest groups. These changes have attracted considerable and mostly critical attention, both nationwide and within certain states, from the federal and state judiciary, bar associations, and academics. Over the same time period, there has been a seemingly unrelated development at the United States Supreme Court. Throughout much of the twentieth century, the Court decided well over 100 cases on the merits each Term. As late as the 1970s and 1980s, the Court was deciding up to 150 cases each year. In the early 1990s, that figure began to decline sharply to about 100, and since about 2000 has declined even further, to about 70 to 80 cases a year. Only about ten cases a year are appeals from state courts.

In their timely and provocative article,1 Amanda Frost and Stefanie Lindquist do not argue that there is a causal connection between these phenomena. But they do argue that it is useful to consider the significance of these developments together.

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