Reviewed by Keith J. Bybee, College of Law and Department of Political Science, Syracuse University. Email: kjbybee [at] maxwell.syr.edu.
editor’s note: James L. Gibson’s Electing Judges was scheduled to be the subject of an "Author Meets Critics" roundtable at the (cancelled) 2012 American Political Science Association Meeting. This review is drawn from remarks prepared for that panel
Judges are elected in many parts of the United States. Should these judicial elections be conducted in the same way as other elections for public office? Or should judicial elections be subject to special regulations and constraints?
The United States Supreme Court gave a partial answer to these questions in Republican Party of Minnesota v. White (2002) when it ruled that candidates for the bench could not be prevented from announcing their views on disputed legal or political issues. At least when it comes to the discussion of general policy positions, the Court held that judicial candidates must be given the same freedom as anyone else running in an election.
In his important new book, Gibson uses the Court’s decision in White as a springboard for examining the effect of judicial elections on “the perceived impartiality and institutional legitimacy of courts” (p.4). Gibson argues that White, like many judicial rulings, is filled with empirical assumptions. His aim is to test White’s assumptions with a battery of surveys and survey-based experiments conducted primarily in Kentucky, a state whose experience with judicial elections broadly reflects national trends.
Gibson’s particular concern is with the empirical assertions of the White dissenters. The dissenting justices seem to believe that policy talk aired during judicial campaigns impugns judicial impartiality and, as a result, degrades judicial legitimacy (pp.25-26). The question is whether there is any data to support such claims.
Carefully elaborating and assessing his survey results, Gibson argues that the White dissenters are on shaky ground. The central issue is that public expectations about appropriate judicial behavior are far from homogenous. To begin with, Gibson finds that roughly one-fifth of survey respondents appear to accept the idea that courts are, in essence, ordinary political institutions. For this group, perceptions of judicial legitimacy are unaffected either by judicial candidates’ direct policy promises or by judicial candidates’ acceptance of campaign contributions from groups seeking to change the law (pp.60-61). The same percentage of the public also believes that state supreme court judges should make decisions according to their personal party affiliation (p.94). And this political assessment of the courts is not just a state-level phenomenon. Gibson reports that around 18% of Americans believe that members of the US Supreme Court should “base their decisions on whether [*478] they are a Republican or a Democrat” (p.12). Contrary to the reasoning of the White dissenters, individuals with pronounced political views of the judiciary are unlikely to be unsettled by the mere statement of policy positions during a judicial campaign. Indeed, as Gibson notes, it is unclear “whether any political activity by judicial candidates would cause doubt among this group” (p.61).
The majority of survey respondents do not share this thoroughly political view of the courts, and their assessment of the bench drops when presented with examples of direct policy promises or of campaign contributions (p.21). Since campaign contributions are already an unavoidable reality in many judicial elections, and since policy promises will inevitably result should judicial candidates be completely unconstrained, Gibson acknowledges that observers are correct to worry about judicial legitimacy (p.139). Yet the level of concern should not be exaggerated for Gibson also finds that most ordinary people are comfortable with a degree of politics in judicial campaigns.
Most Americans recognize that judges have some discretion to make policy and that judicial policymaking will be informed by political beliefs. As a consequence, and contrary to the White dissenters, the core activity of an election, with candidates openly communicating their views on contested issues, does not diminish judicial legitimacy. In fact, Gibson finds that even those instances where people are deeply offended by some aspect of a judicial campaign (for example, where an individual encounters a campaign advertisement that she finds to be extremely partisan, unfair, and inappropriate) the overall support for the judiciary does not significantly decrease (p.123). This is so because the fact of the election itself confers legitimacy on the courts, providing a measure of support that is typically greater than the negative impact of any campaign activity that violates the majority’s sense of what is appropriate in a judicial race.
Thus for a majority of the public it “is not politics per se that is objectionable” in a judicial election because most people consider the courts to be at least partially political (p.134). Feathers will be ruffled only some of the time. When a specific campaign activity makes a judicial candidate look self-interested and presents the judiciary as being no different from any other political institution, an important line has been crossed for most people and judicial legitimacy is threatened (though we should expect (i) that the fact of election will continue to buoy judicial legitimacy; and (ii) that around one-fifth of the public will remain unfazed under almost any circumstances). Gibson’s argument, supported by extensive survey results, is that significant political activity can occur without fatally undermining the bench in the eyes of most Americans.
Gibson also argues that the diversity of public opinion goes beyond the division between those who see the judiciary as special and limited kind of political institution, and those who consider it to be a political institution full stop. He finds that people living in states without judicial elections (a minority in the US) are critical of activity that residents of states with judicial elections find unproblematic. In particular, people in [*479] states without judicial elections say that policy statements by judges detract from judicial legitimacy. It appears, as Gibson notes, that expectations about appropriate judicial behavior are influenced by prevailing practice and that “experience with [judicial] campaigning leads to acceptance of it” (p.55).
Moreover, Gibson finds that the majority who accept that the courts are a specific sort of political institution hold a complex and contradictory set of beliefs (as Gibson notes, I reach the same conclusion in my own work: Bybee 2011). Over 70% of survey respondents believe that a good state supreme court justice should “strictly follow the law no matter what people in the country may want” (p.93). At the same time, nearly three-quarters of respondents (including 75% of those who say justices should “strictly follow the law no matter what”) also believe that the justices should be “especially concerned about protecting people without power from people and groups with power” (p.93). In short, most people expect the high bench to rigorously adhere to legal principle and to pursue broad political objectives all at once. Again contrary to the White dissenters, such conflicting views do not yield a simple verdict about the effects of politically inflected judicial campaigns.
Gibson’s multifaceted argument about the complexity of public expectations is a truly valuable addition to the existing debate. His finely detailed description of public opinion significantly qualifies the oft-made claim that judicial elections can have only a negative impact on popular assessments of the judiciary. His careful analysis also provides a useful companion to recent work exploring how the role of state judicial elections and the meaning of state judicial independence has altered over time (Tarr 2012). More broadly, Gibson’s meticulous research contributes to a long line of scholarship that considers heterogeneous and conflicting public beliefs to be a durable foundation for the rule of law (Arnold 1935; Shklar 1964; Ewick and Silbey 1998). By clearly demonstrating that the public possesses a mix of legal and political views about courts, Gibson helpfully moves scholarly discussion away from the criticism of a politicized judiciary and toward the investigation of how a politicized judiciary continues to be accepted as an authoritative legal arbiter.
Good scholarship often leaves readers asking for extensions of the core arguments and Gibson’s study is no exception. I would have liked to see Gibson assess the empirical assumptions of the White majority as well as those of the White dissenters. Gibson does not purport to address every aspect of the Court’s decision, but he is centrally concerned with the factual basis of the ruling. If the majority and dissenting opinions in White were perfectly opposed to one another, then a refutation of the empirical assumptions in one opinion would necessarily validate the assumptions of the other. Yet the opinions in White are not in perfect opposition: the majority does not reject the dissenters’ support for judicial regulation by arguing that judicial candidates must be allowed all the freedoms enjoyed by other candidates running for public office. The White majority explicitly refuses to rule that judicial candidates should be free of all [*480] special regulation (White, p.702) and, as Gibson acknowledges (pp.143-44), a number of restrictions on judicial campaigns have in fact been upheld in the wake of White. What sort of empirical assumptions underwrite the White majority’s ruling that some – but not all – of the existing restrictions on judicial elections are invalid? Are these empirical assumptions consistent with Gibson’s findings about acceptable judicial behavior?
In a concurring opinion in which he writes only for himself, Justice Anthony Kennedy does take the position that judicial candidates have the same freedoms as all other candidates (White, p. 716). Kennedy suggests that any damaging political speech uttered by unrestrained judicial candidates can be countered by speech from “the legal profession, the legal academy, the press and voluntary groups, political and civic leaders, and all interested citizens” urging “a higher and better understanding of the judicial function” (White, p.717). Kennedy’s faith in the efficacy of counter-speech during a judicial election runs contrary to Gibson’s finding that it is precisely in the context of such elections that the public is likely to embrace political talk about the judiciary. Here, too, I would have liked to see Gibson unearth and analyze underlying empirical assumptions.
I also think that Gibson could have fruitfully extended several of his more theoretical discussions. His speculation about why legal elites appear to believe that all policy statements made during judicial campaigns are destructive (pp.132-34) made me curious about another group: the roughly 20% of the public that seem to have a completely political view of the courts. This group is certainly at odds with elites, and it also parts company with the majority. I would welcome Gibson’s thoughts about what drives this wholly political conception of judging. I also would welcome more discussion about the legitimacy-conferring power of elections. Gibson ultimately argues that elections engender support for the courts (even though some campaign activities may chip away at judicial legitimacy) because of accountability. It is because elections provide a mechanism to keep the courts accountable to the preferences of the majority that most people see elected judges as legitimate. In my view, Gibson could have enhanced this “logic of electoral legitimacy” (p.131) by discussing the role of consent. Elections are certainly a means of ensuring accountability, but they are also a way of expressing consent. To participate in an election is to consent to be governed by the result even if one’s preferred candidate loses. Such electoral consent is less a matter of directly controlling government authority than it is of granting permission for authority’s exercise. As scholars have shown, the solicitation of consent is an ancient strategy used by the earliest courts to ensure legitimacy and compliance (Shapiro 1981), and consent is still relied heavily upon by the modern judiciary (Tyler 1990). Were Gibson to bring consent into his discussion of elections more explicitly, he would be able to make clearer connections between his study and the well-established literature on the importance of consent in the judicial process.
Of course, the fact that I think Gibson could have developed his arguments [*481] further does not diminish my admiration what he has achieved. Electing Judges is a clearly written, empirically rich book that provides an indispensible map of the American public’s diverse expectations about appropriate judicial behavior. Scholars, policymakers, and jurists alike will learn a good deal about the determinants of judicial legitimacy by reading Gibson’s work.
Arnold, Thurman W. 1935. The Symbols of Government. New Haven: Yale University Press.
Bybee, Keith J. 2011. “The Rule of Law is Dead! Long Live the Rule of Law!,” in Charles Gardner Geyh, ed., What’s Law Got to Do With It? What Judges Do, Why They Do It, And What's At Stake. Stanford: Stanford University Press.
Ewick, Patricia and Susan Silbey. 1998. The Common Place of Law: Stories from Everyday Life. Chicago: University of Chicago Press.
Shapiro, Martin. 1981. Courts: A Comparative and Political Analysis. Chicago: University of Chicago Press.
Shklar, Judith N. 1964. Legalism: Law, Morals, and Political Trials. Cambridge: Harvard University Press.
Tarr, G. Alan. 2012. Without Fear or Favor: Judicial Independence and Judicial Accountability in the States. Stanford: Stanford University Press.
Tyler, Tom R. 1990. Why People Obey the Law. New Haven: Yale University Press.CASE REFERENCES:
Republican Party of Minnesota v. White, 536 U.S. 765 (2002).
Copyright by the Author, Keith J. Bybee