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, 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. In short, they contend that the high-profile nature of state judicial elections is not a good thing, since it presents the “majoritarian problem” found in their title: nominally impartial state judges, in place to check the other branches of government, will be prone to bend to public opinion as expressed in elections. On this account, it is particularly a problem when state judges must enforce counter-majoritarian rights. But as Frost and Lindquist observe, “[l]ike it or not, elected judges are here to stay.” To deal with the majoritarian problem, they argue that life-tenured federal judges can adjust the gate-keeping criteria by which they review state court decisions. The authors suggest that the federal Supreme Court more often review decisions of courts from states with competitive election systems, and that lower federal courts take into account the same factors when collaterally reviewing state criminal decisions via habeas corpus. They further argue that federal courts should explicitly state that they are taking these criteria into account.
In this response, I will briefly review Frost and Lindquist’s arguments and their empirical study that indicates that the Supreme Court more often reviews decisions from elective states than appointive states. In my critique, I focus mainly on their remedy, that federal courts should candidly announce that they are taking into account the mode of state judicial election when reviewing, or deciding to review, decisions from a particular state. Among the issues I will address are whether such a blunt remedy is necessary in light of (1) existing empirical evidence about judicial elections, and on how state courts in general apply federal law; (2) assumptions about the presumed need or ability to ensure uniformity in federal law; (3) whether federal courts will be as candid as suggested by Frost and Lindquist; and (4) how such a remedy, if adopted, might affect decision-making in state courts.