Retention Politics in State Supreme Courts: The Power of Elites and the Limitations of Voter Oversight of the Judicial Branch

The central question of this entire research project is “What are the political effects of making high-court appellate justices serve time-limited, but renewable, terms?” I argue that the primary effect is creating a strong incentive for justices to behave strategically to make sure they keep their positions at the end of their current term. The nature and strength of this incentive is determined by who states give the retention choice to. The common options – governors, legislators, and voters – have variable traits that lead to different expectations. Governors and legislators have informational advantages over voters because of their extensive resources and expertise, while legislators and voters face collective action problems in using their retention powers that governors – acting unilaterally – do not. The stronger the retainer is in these attributes, the stronger the incentive will be for the justice to behave strategically.
In practice, this strategic behavior manifests itself in justices making rulings that are favorable to the retainer’s preferences. This is a departure from a purely independent model of judging – such as the attitudinal model – in which judge’s decisions are based on some internal calculus of legal interpretations, policy preferences, or consequentialist cost-benefit analysis. Through this change in behavior, retainers have influence over the policies created in state supreme courts. Justices move policy in the governor’s direction (relative to the counterfactual in which all justices have life terms).
I test this by analyzing thousands of criminal appeals from high courts in more than thirty states over the period of 1995-2010. Among governors, I find considerable evidence that needing to be retained leads justices to vote in line with the governor’s preferences. Among legislatures, I find similar influence, but find it limited by partisan barriers: majority parties police justices of the rival party. For voters, however, I find no such influence. In fact, I find evidence of a null or negligible effect for voters’ preferences. These results largely match my theoretical expectations and lead to the conclusion that political elites’ informational advantages and reduced collective action barriers make them far more influential when they get to decide judicial retention. This gives them extra leverage over policy and substantially reduces judicial independence. Voters, despite all of the many fears articulated about them deciding judicial offices, most often lack sufficient information to actually influence judicial behavior. These results should point critical focus away from elections and towards reappointments as threats to independent and consistent justice.