I generally like Adam Liptak’s reporting on law, but a recent story poorly frames the question of the stakes in state judicial elections. Liptak reports on two studies that suggest that elected judges are less likely to rule in favor of rights for homosexuals and become harsher on criminal defendants the closer the proximity to an election. At the end of the article he suggests that making judges more accountable to the people is thus in tension with “the utmost fairness,” quoting Chief Justice Robert’s desideratum for the judicial system.
But I hope and believe that what the Chief Justice means by fairness are decisions that follow the law. It certainly should not mean decisions that the left likes. The studies Liptak reports tell us nothing about whether elected judges decide cases more accurately than appointed justices or whether they do so more or less so in the shadow of an election. The inference being made is that public pressure distorts justice. Maybe so. But the important question is whether it makes judicial decision making more or less accurate.
Judges may want to skew their decisions to maximize their chances of reelection. But judges who do not face elections may also want to maximize personal advantages. And the most obvious objective to be maximized is their reputation and that reputation is decided by a subset of the people— lawyers and elites.