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.