Legal Correctness, Not Popularity with People or Elites, is the Measure of Fairness

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. I have already shown how elite universities shower recognition on one kind of Supreme Court justice—those who rule for the left-liberal side of the spectrum. Lawyers too are predominantly left liberal for a variety of reasons, including that legal change and unclear legal rules are generally monetarily advantageous to them. Thus, it is possible, even plausible, that in some judicial systems popular elections provide some counterweight to this elite pressure and we will get fairer, i.e. more accurate decision making as a result. For instance, elite pressures surely favored the recognition of same-sex marriage, regardless of whether that decision was correct as a matter of law.

Indeed, one of the examples of the untoward power of democracy that Liptak gives is the electoral defeat of three Iowa justices who interpreted the venerable equal protection clause of the Iowa Constitution to provide a constitutional right for same-sex marriage. But those judges were appointed in way that maximizes the power of elites. Many members of a commission that sends names to the Governor who become eligible for judicial appointment are actually selected by lawyers. With that kind of selection system, it would hardly be surprising that appointees would tend to have ideological and guild biases that might shape their judicial rulings in a manner inconsistent with “the utmost fairness.”

Liptak’s reporting on the judiciary is notable for introducing quantitative studies like the ones discussed in this article. They may be interesting but they do not generally shed any light on the correctness of judicial decisions—which should be our greatest concern. Perhaps Liptak is a legal realist who thinks that correct decisions cannot be determined by formal legal materials and methods. But that would be a large, controversial, and undefended assumption in his reporting.

Reader Discussion

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on October 05, 2016 at 14:58:23 pm

Once social-science opinion bemuses judicial opinion, public opinion will be so confused pollsters won’t be able to influence elections. Chaos seems possible.

Read nber.org/papers/w22611 (tedious as it seems) to comprehend, perhaps help me understand. The article claims innocent adolescents suffer judicial wrath during the week after the flagship football team loses a critical contest. Since black adolescents more frequently “get in trouble,” the possible judicial-habit seems racially charged. Reliability of the study, much like factuality of court opinion means nothing to a civic yet bemused people.

The entire system is so far out on a limb it is hard to see how it can get back to the roots of justice, the-indisputable-facts-of-reality rather than opinion about court-opinion.

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Phil Beaver
on October 05, 2016 at 17:34:05 pm

really, John?

" Perhaps Liptak is a legal realist who thinks that correct [decisions are those that have a distinct leftist tint] as one may determine by the general tenor and slant of his reporting. Recall the hatchet jobs he has done on Thomas and Scalia.

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on October 05, 2016 at 17:40:30 pm

Of course, the study itself should be suspect, in my opinion, for it was commissioned by a group that may have a definite interest or pre-conception regarding the findings. Can it be presumed that scientists/researchers are any less responsive to their sponsors than elected judges may be to their constituents?

Additionally, it may well be that while elected judges respond to the will of the people, that appointed judges respond to the will and ideologies of the Executive (that appointed them), which in most instances, and most recently, are not those of the broader society. Hence, an appointed life-long judiciary is so delicious to ideologues.

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Paul Binotto
on October 05, 2016 at 21:54:13 pm

I'm sorry but I think your wrong here. This does show evidence that the judges are not deciding the cases based on legal correctness. It doesn't show if the harsher sentences near election time are more right than the less harsh sentences further away from election time. But they both cannot be legally correct. The date of the election should legally have no relevance for the amount of sentencing. So any judges that are changing their sentencing behavior closer to the election are clearly not deciding the cases legally correctly. It doesn't show which where the incorrect and which were the correct, but one of those two had to be incorrect.

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Devin Watkins
on October 05, 2016 at 21:55:50 pm

*were (not where), sorry.

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Devin Watkins

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