A Penny for the Court's Thoughts? The High Price of Judicial Elections
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Noi(hwsbIn JuiUal of Law awd Social Poly
A Penny for the Court's Thoughts?
The High Price of Judicial Elections
Bronson D. Bills*
[i]t was 'never contemplated that the individual who has to protect our
individual rights would have to consider what decision would produce the
most votes.'1
Justice John Paul Stevens
I. INTR()DLICTI()N
When commenting on the importance of judicial independence, the great John
Marshall once opined: I have always thought, from my earliest youth till now that the
greatest scourge an angry Heaven ever inflicted upon an ungrateful and sinning people,
was an ignorant, a corrupt, or a dependent judiciary,' In keeping with that statement,
this article undertakes an assessment of one of the most fundamental principles in the
Anglo-American legal system. judicial independence. It is a time-honored ideal that
must be, in the words of Justice Brennan, 'jealously guarded against outside
interference.3 Specifically, this article examines judicial elections, as currently used by
some states across America today,4 and demonstrates how these elections, now more than
* Associatc, Brayton & Purccll, Sall Lake Cily, Utlnh wrillcn whilc clcrking for thc Honorable J, Thomas
Greene, Senior Judge, United States District Court for the District of Utah. [Editor's Note: The author
fonncrly clcrkcd for Juslice Nancy Sailla wlilc she was a Ncvada District Court Judge,] This articlc is
dedicated to my good friend and mentor Judge Lawrence J. Block, United States Court of Federal Claims.
Once again, if I have seen further than others, it is because I have stood on the shoulders of Giants.
Bronson D, Bills, Nole, Does Jurisdiction AMater o he Tenzh Circuil? Utahns for Beller iransp. v. U1.
Dep 't. ofTransp,, 2 GEO. J. L. & PUB. POLY 747, 747 (2004) (quoting Letter from Sir Isaac Newton to
Robcrt Hookc, Fcbruary 5, 1676, quoted in STEPHEN HAWKING, ON THF SHOUIJrmRS OF GIANTS:THE
GREAT WORKS OF PIHYSICS AND ASTRONOMY 725 (Stephen Hawking ed., Rumung Press Book Publishers
2001) (2002)). I would also like to thank Taylor Broadhead, J.D. Candidate 2010, Cornell Law School, for
his research assistance. All ideas, as well as errors, as the old saying goes, are my own.
1 Stephen B. Bright, PoliticalAttacks on the Judiciary. Can Justice Be Done Amid Efforts to Intimidate and
Remove Judgesfrom Q/f/icejbr Unpopular Decisions?, 72 N.Y.U. L. REV. 308, 310 (1997) (citing Justice
John Paul S(cVcnis, Opcning Asscrnbly Addrcss, American Bar Associalion Annual Meeting 12 (Aug. 3,
1996) (quoting Florida Supreme Court Justice Ben Overton) (on file with the New York University Law
Rcvicw)),
2 Jcfferson B, Fordham & Tlcodorc H. Husicd, Jr., John Marshall and the Rule qf/Law,, 104 U, PA, L. Rpv,
57, 61 (1955) (quoting PROCEEDINGS AND DEBATES OF TIE VIRGINIA STATE CONVENTION OF 1829-30, at
615-19 (1830)). Other notable giants, such as ex-President William Taft, felt likewise. See WILLIAM fI.
TAFT, TILE SELECTION AND TENURE OF JUDGES 6 (1913) (noting that judicial elections are inherently
disgraceful and so shocking .. that we ought to condenm without stint a system which can encourage
or pcnnit such demagogic mcthods of sccuring judicial posilion).
3 Misircta v, Unitcd Slacs, 488 U.S. 361, 409 (1989) (citing N, Pipclinc Conslr, Co. v. Maraihon Pipe Linc
Co., 458 U.S. 50, 60 (1982)).
4 Currently, thirty-nine states use judicial elections to appoint some or all of their judges to the bench. See
Raymund A, Sobociilski,A/ dumbrafions on Judicial Campaign ,Speech, 43 1I)AHO L. REV. 193, 201-02](ViewImageLocal?handle=hein.journals/nwjlsopo3&div=5&collection=&method=preview&ext=.png&size=3)
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A Penny for the Court's Thoughts? The High Price of Judicial Elections
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