Judicial Activism in State Supreme Courts: Institutional Design and Judicial Behavior

Abstract

How governments and the electorate choose to structure judicial institutions has implications for the rule of law. In the state context, for example, judicial elections were instituted precisely because reformers expected elected judges to counter legislative action more vigorously through the power of judicial review. But when judges invalidate statutes more frequently, they reduce law’s predictability and stability. The same can be said for decisions overruling precedent: frequent overrulings undermine the norm of stare decisis and destabilize the legal status quo. These behaviors may also be viewed by some observers as more “activist” than those that defer to legislative judgments or adhere to existing doctrine enunciated in case law.

For these reasons, the relative degree to which judges overrule precedents or invalidate statutes is important even in the face of the enhanced legitimacy some state court judges draw from their closer connections to the electorate. The results of the empirical analysis described below indicate that judges subject to reelection through a nonpartisan or partisan ballot are more likely to invalidate legislative enactments and to overrule existing precedent than are judges retained via other reappointment methods. These results hold even after controlling for a host of court-, state-, and judge-level characteristics. Judges who are answerable to the electorate and who are insulated from retention by the elected branches are, quite simply, more willing to challenge the legal status quo. This result may not surprise court observers. After all, elective systems were implemented in order to provide state court judges with an independent base of electoral support from which to challenge and rein in legislative activism. Nevertheless, for those interested in reforming judicial elections, this information is critical for a complete understanding of the ways in which judicial retention systems affect the rule of law.

Details

Publisher:
Stanford University Stanford, California
Citation(s):
  • Stefanie A. Lindquist, Judicial Activism in State Supreme Courts: Institutional Design and Judicial Behavior, 28 Stanford Law & Policy Review 61 (2017).
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