Unconventional Wisdom: The Roberts Court's Proper Support of Judicial Elections

Scott W. Gaylord, Elon University School of Law

Abstract

Conventional wisdom holds that the Roberts Court’s recent First Amendment decisions have created a crisis for the 22 states that use contested elections to select the members of their state judiciaries. As Justice Sandra Day O’Connor, who has become a leading critic of judicial elections since retiring from the Supreme Court, has stated, “[l]eft unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold.” Accordingly, to preserve the independence and integrity of their judiciaries, critics contend that states should adopt the “Missouri Plan” (or some similar form of merit selection) to take the money, and therefore the “politics,” out of judicial selection.

This paper contends that the conventional wisdom is wrong—there is no crisis regarding the independence of state judiciaries, and judicial elections, in conjunction with the Roberts Court’s recent decisions, actually promote the independence, accountability, and quality of state court judges. As a result, states need not—and should not—feel compelled to adopt or retain so-called Missouri Plans. Contrary to the conventional wisdom of Justice O’Connor and others, these “merit-based” appointment systems have failed to provide the politics-free judiciary that their advocates promised. In fact, this year 26 states are considering legislation to change or replace their judicial merit selection systems. Thus, this paper concludes that, while there may be no perfect way to select judges, judicial elections ensure that the judiciary remains independent of the other branches of government and that judges remain directly accountable to the people, providing the only meaningful check on the not-so-least dangerous branch.