While I’m tempted to talk about the stay of the Chrysler bankruptcy sale, let’s stick with the Court’s opinion (issued yesterday) in Caperton. This case on elected judges, due process, and campaign contributions is well worth reading, especially given Chief Justice Roberts’ dissent and its “Forty Questions” for the majority.
An elected judiciary is one of the most important (and unique) institutions in American law, but it gets almost no scholarly attention. (Jed Shugerman at Harvard and Renee Lerner at GW are trying to rectify that with some terrific work). In 1841, Henry Clay (on the right) asked the Supreme Court to disregard a decision from Mississippi that was being appealed because the state had an elected judiciary (it was the only state with elected judges at all levels.)
Clay told the Court in his oral argument:
Who are the judges of the courts of Mississippi, and what is the tenure of their offices? They are elected by the people; and the judges so elected form the court of errors; and a court thus constituted are called upon to decide a case affecting a large portion of the citizens of the state, in which strangers to the state, and who have no influence in their appointment, and the claimants! The judges of Mississippi are sitting in their own cause; in the cause of those around them; of those who gave and can take away their offices!
The Court did not address Clay’s point, and elected judges eventually became the norm in the states. Nevertheless, they have always coexisted uneasily with other constitutional principles, and this is starting to draw the Court’s attention. In 2002, the Justices addressed the question of how the canon of judicial ethics, with its limitations on speech, squared with the First Amendment and campaigns for judicial office. Some argue that the Court’s recent imposition of constitutional limits on state punitive damage awards was driven in part by the fact that elected judges supported by plaintiffs’ lawyers were not disciplining juries. Others say that the application of the death penalty is distorted by elected judges who pledge to be tough on crime. And now Caperton opens the door to challenges based on contributions to judicial campaigns.
Elected judges aren’t going anywhere, but the friction between them and the rest of the Constitution is probably going to increase.