Judicial Independence and Nonpartisan Elections

Brandice Canes-Wrone, Princeton University
Tom S. Clark, Emory University

Abstract

This Article argues against the conventional wisdom about nonpartisan judicial elections. In contrast to the claims of policy advocates and the scholarly literature, we suggest that nonpartisan elections do not necessarily encourage greater judicial independence than partisan elections do. Instead, nonpartisan elections create the incentive for judges to cater to public opinion, and this pressure will be particularly strong for the types of issues that attract attention from interest groups, the media, and voters. After developing this argument, we support it with new empirical evidence. Specifically, we examine patterns of judicial decisions on abortion-related cases heard by state courts of last resort between 1980 and 2006. Analyzing nearly six hundred decisions from sixteen states, we demonstrate that public opinion about abortion policy affects judicial decisions in nonpartisan systems, while no such relationship exists in states with partisan elections. Accordingly, this Article suggests that in states with nonpartisan elections, public opinion plays an underappreciated role in the courtroom.