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Article Excerpt
The vast majority of law cases in our nation are filed, heard, and determined in the courts of the various states. (1) Yet the attention paid to the role of state courts in our society--and threats to that role-often has lagged behind that accorded the federal courts in both public and scholarly notice. The study of state tribunals is complicated because the judicial systems in the fifty states often are structured very differently from one another. The division of labor among the courts of any given state, the scope of a particular court's jurisdiction, the manner of selection and retention of judges or justices, and even the names of analogous courts, to cite a few significant areas, are far from uniform and often reflect unique aspects of the history and development of the individual state.
This lack of uniformity at the state level, and the attendant difficulties in tracking and comparing court cases, should not, however, mask the substantial role of state courts in advancing our nation's interest in providing fair and impartial adjudication to the public. The steadily increasing focus over the past few years on the impartiality of state courts, as well as on the improper pressures that have been applied to courts on both the state and federal level, reflects a growing awareness that the fate of state courts and the public's respect for their rulings have significant implications for our democratic system, both locally and nationally. At risk is not only the judicial process, but also the basic political structure of our nation. And the word political is used here in both its broadest and its most partisan senses.
The issues revolving around our third branch of government are varied and complex. Even the shared meaning of common catchpharases no longer may be taken for granted. A few years ago, for example, Judge Mary Schroeder, former chief judge of the U.S. Court of Appeals for the Ninth Circuit, described how, in her home state of Arizona, the longstanding and seemingly unobjectionable concept of "independence of the judiciary" was being employed with new caution. Some members of the public had construed the phrase as an invitation for courts to act in disregard of popular preferences--not only independent of, but without "accountability" to, the public. Today, growing segments of the public likewise seem to have concluded that greater accountability is needed because, in their view, judges presently may do whatever they wish, untethered from popular opinion. What once may have seemed an unexceptionable axiom of good government may now be under scrutiny, or may have taken on new and unfamiliar connotations.
This essay focuses on a few key developments in a very dynamic area. My purpose is to whet the reader's appetite for further exploration of the role state courts should be expected to play, of the impact of increasing numbers of expensive and hard-fought campaigns for individual judicial positions, and of the consequences of overt political and other pressures on state courts. It is apparent that what happens in state courts will profoundly affect the public's respect for the rule of law in our nation, and thus the fundamental stability of our democratic system.
Several recent developments--two involving judicial selection and a third involving the Terri Schiavo case--provide context. The U.S. Supreme Court's 2002 decision in Republican Party of Minnesota v. White (2) casts a strong--and sometimes harsh--light on judicial elections in several states. In White, the high court held that Minnesota's Code of Judicial Conduct, which barred candidates for judicial office from "announcing" their views, violated the First Amendment right to free speech. The court majority rejected the notion that there is any substantial difference between judicial and legislative elections, asserting that judges too have the power to make law--not only by developing the common law, but by shaping each state's constitution. (3)
Some thirty-nine states presently elect at least some of their judges. (4) Some hold contested partisan elections, others nonpartisan contests, and yet others retention elections. Many states have systems combining a variety of selection mechanisms. The length of the term of office at issue varies. (5) Regardless of the selection method, however, where previously judicial selection was seen in many jurisdictions as removed from everyday political activities, partisan pressures and the growing influence of special-interest groups recently appear to have assumed a new importance in many of these contests.
The impact on the state and federal judiciaries often takes different forms. The senatorial confirmation hearings for Chief Justice John Roberts in 2005 and for Associate Justice Samuel Alito in 2006 generated widespread discussion concerning the relevance of a judicial candidate's political beliefs to the Senate's exercise of its constitutional obligation to render advice to the president and consent concerning such appointments. The year before, the tragic case involving Terri Schiavo and her husband's suit to permit the removal of her feeding tube illuminated some of the tensions existing between executive, legislative, and judicial power at the state level. The Schiavo case also provided a lively display of the varieties of interaction between federal and state government, including the uniform rejection of Congress's eleventh-hour attempted intervention by every court to have considered the issue, including the U.S. Supreme Court.
House Majority Leader Tom DeLay then called for an investigation to determine whether the judges who had participated in the series of decisions rejecting the various challenges to the order allowing removal of Schiavo's feeding tube should be investigated with the possible objective of impeachment. He asserted, "The time will come for the men responsible for this to answer for their behavior." He later...
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