Judicial elections are a time bomb that could blow up our democracy

Judicial elections are a time bomb that could blow up our democracy

Paul Waldman — Read time: 4 minutes

Columnist |

October 18, 2022 at 7:00 a.m. EDT

“I wonder how long we’re going to have these institutions at the rate we’re undermining them,” said a Supreme Court justice earlier this year. “And then I wonder when they’re gone or destabilized, what we will have as a country.”

That justice was Clarence Thomas, and what prompted his warning was the leak of a draft opinion overturning Roe v. Wade. The problem, he insisted, was the wrongheaded belief that a Supreme Court now dominated by conservatives is in any way infected by the toxic virus of politics.

But here’s the truth: America already has what are almost certainly the most politicized courts in the entire democratic world. And that politicization is rapidly worsening, especially at the state and local level, rendering them less likely to safeguard our democracy at a moment when it faces unprecedented threats.

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Consider a vivid story from Montana, a state dominated by Republicans that has also had plenty of Democratic representation in the recent past; one of its two senators is a Democrat, as were the two governors before the current one. The conservatism that has prevailed there has long been more the leave-us-alone variety than the aggressive, culture war-inflected kind.

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But this year, a race for a state supreme court seat has been turned into an almost purely partisan affair, at least from the Republican side. Although, like many judicial elections, the ones in Montana are supposedly nonpartisan, James Brown, who is challenging incumbent justice Ingrid Gustafson, is backed by the Republican governor and most of the state GOP and is promising to turn the court to the right on issues such as abortion and guns.

This year 18 states have state supreme court races on the ballot. In four — Illinois, Michigan, Ohio and North Carolina — the outcome will determine whether control of the state’s highest court flips.

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Judicial elections aren’t new; what has changed is that almost everyone has stopped pretending that the courts are anything but political actors. Eight years ago, it was a minor scandal when an Ohio Supreme Court justice said “I am a Republican and you should vote for me” to “keep the Ohio Supreme Court conservative,” but today it would be nothing more than stating the obvious.

Here’s what ought to be obvious, but isn’t: The fact that we elect judges at all is utterly perverse.

Federal judges are appointed by the president, but we hold elections at the state, county and local level for people who will sit on the bench and decide what the law is. While some states hold only retention elections for high courts (in which judges are appointed but then later face an up-or-down vote to hold their seats), only seven states have no judicial elections at all.

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There’s almost no other country where they do things this way, aside from a couple of minor exceptions (such as elections for canton-level judgeships in Switzerland). In nearly every other democracy on earth, people would find the idea of having judges run for their offices self-evidently idiotic.

Judges are chosen in a number of ways around the world — independent commissions, appointments by political leaders with certain restrictions and periodic review, and so on. But having judges raise money from people with interests before the court, pander for votes and generally debase themselves before a capricious and ill-informed electorate? Who could possibly think that’s a good idea?

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For many years, the system of electing judges did limited damage. Some states have restrictions on how judges campaign that are meant to depoliticize the process, and in general candidates themselves exercised restraint; it was considered bad form to talk too much about political disputes or make promises on how you would rule. Not anymore.

So what we see — as in many other areas — is the convergence of a flawed system, intensified polarization and actors willing to bust through preexisting norms for their own and their party’s advantage. The more polarized the electorate is, the more partisan judges will have to be to get on the bench and stay there.

For all the protestations of people like Thomas, much of the blame should rest with Republicans, from a Supreme Court majority on a mission to pull the country to the right, to Donald Trump’s appointment of partisan hacks to the bench, to the Senate Republicans who made it all happen. The disintegration of the Supreme Court’s legitimacy will almost inevitably filter down to affect how people view the rest of the court system.

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But it’s also vital to remember that in 2020, judges at all levels — even some appointed by Trump himself — thwarted his scheme to overturn the election. They did what they were supposed to do, standing up for the rule of law against a partisan power grab.

We’ll face a similar crisis after next month’s election — and even more urgently in 2024. The judiciary will likely be the last bulwark protecting our democracy. What happens if the Republican presidential nominee loses and his supporters challenge the election results in every state he lost? Would state supreme courts resist if they’re controlled by Republicans whose reelection depends on showing loyalty to their party’s cause? Will they even want to?