Shugerman on the rise of judicial elections in the US

February 27, 2010

Fascinating article on the rise of judicial elections in the US during the 19th Century by Shugerman of Harvard Law School.  Available on SSRN here.  Here’s the abstract:

Almost ninety percent of state judges today face some kind of popular election. This peculiar institution emerged in a sudden burst from 1846 to 1853, when twenty states adopted judicial elections. The modern perception is that judicial elections, then and now, weaken judges and the rule of law. Indeed, some critics of judicial power in the early republic supported judicial elections for precisely those reasons, but instead, they focused on other more direct attacks on the courts.

Judicial elections swept the country in the late 1840s and 1850s and the key was a new movement to limit legislative power, to increase judicial power, and to strengthen judicial review. Over time, judicial appointments had become more a tool of party patronage and cronyism. Legislative overspending on internal improvements and an economic depression in the early 1840s together had plunged the states into crippling debt. A wave of nineteen states called constitutional conventions from 1844 to 1853, and in addition to direct limits on legislative power, these conventions adopted judicial elections. Many delegates stated that their purpose was to strengthen the separation of powers and to empower courts to use judicial review.

The reformers got results: elected judges in the 1850s struck down many more state laws than their appointed predecessors had in any other decade. These elected judges played a role in the shift from active state involvement in economic growth to laissez-faire constitutionalism. Oddly, the first generation of elected judges were the first to justify judicial review in countermajoritarian terms, in the defense of individual and minority rights against abusive majorities and the “evils” of democracy. This Article concludes with lessons about judicial independence and democracy from this story.

And some key conclusions from the end of the article:

First, judicial elections were not inevitable, but rather arose from a contingent set of events and passionate leaders that reframed the role of the judiciary from a threat to democracy to the protector of democracy.

Second, the concepts of judicial independence and the rule of law were popular and essential to the adoption of judicial elections. Today’s reformers can borrow from the Barnburners’ playbook by arguing that independent courts protect both democracy and law, rather than assuming that the two are inherently in conflict.

Finally, institutional change can move surprisingly fast: Judicial elections swept the nation in five short years, more or less. Perhaps there is another wave on the horizon that will revive the American Revolutions of 1848: a stronger judi‐ ciary for the people, by the people, and more able to stand up to the people when necessary.


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