In the past few years,
we’ve seen major cases concerning everything from abortion access
to transgender rights be argued in state courts across the country.
At the same time, political influence over the judicial branch has grown.
What we expect of both state courts and also federal courts
is that they are not vulnerable to the political tides of a time.
This is Michele Bratcher Goodwin, a legal scholar and law professor.
Now, what some people may say is that these times, that's
a bit confusing, on both the federal court level and the state court level.
Many Americans are expressing that they see the court now
as a political branch of government.
So how did we get here?
To explain that, let’s first look at the basics.
Within the U.S. judiciary,
there are two systems: federal courts and state courts.
Federal judges and Supreme Court justices
are appointed by the president and serve for life.
At the state level, judges and justices reach the bench
in a variety of ways, from appointments to elections.
State courts hear 95% of all cases filed in the United States every year.
This is Douglas Keith,
counsel in the Democracy Program at the Brennan Center for Justice.
These are the courts that most folks, if they have to interact with a court,
it is most likely gonna be a state court and not a federal court.
State courts hear family
law cases, the majority of criminal cases, and most contract cases.
We are in this moment where so many of the high-profile
court cases are playing out in state courts and advocates who normally would’ve
brought their cases to federal courts are bringing those cases to state courts.
We are seeing state courts think about their state constitutions
in ways that they maybe haven't before.
So why does it seem like state courts suddenly have so much power?
In short, it’s because political influence has increased.
This shift didn’t happen overnight, but there were a few key turning points.
One was the 2010 Citizens United ruling.
This Supreme Court decision enabled outside political and corporate interests
to get involved in elections in a way they hadn’t previously been able
to—including judicial elections at the state level.
And so spending not only picked up in some states,
what changed was where the money was coming from.
Instead of campaign contributions going directly to the judges
running for office, you saw increasingly that competitive judicial elections
were dominated by big-spending outside groups
who were able to hide information about the source of their money
and who was so interested in influencing who sits on state courts.
Another case that drew political attention to state courts was Dobbs v. Jackson.
In its decision to overturn Roe v. Wade as part of the Dobbs ruling,
the Supreme Court returned control over reproductive health rights to the states.
State supreme court justices have decided to either protect
or erode abortion access in the wake of the Dobbs decision.
In the last few years, we have seen U.S.
Supreme Court decisions about redistricting and about abortion
access really shine a light on how important state courts are,
and almost kick some issues back to state courts, making these courts
even more important
for some of the highest profile legal fights, which they will be asked to decide
instead of the U.S. Supreme Court.
And as a result, we have seen records shattered in a number of states.
The most recent election in Wisconsin saw $45 million in spending,
according to preliminary estimates, which, if true, is three times
the amount we've ever seen spent in a state supreme court election before.
The political influence we’re
seeing at the state level extends to federal courts, too.
It would be absolutely unheard of until the Trump administration
that there would be a president to basically articulate
an agenda for the court and then later to say that, ‘yes,
my agenda was fulfilled by the people that I nominated for the court.’
Pres. Trump appointed not only justices to the United States
Supreme Court, he also appointed judges to lower courts.
And what this leads to, then, is the opportunity for people
with a particular point of view then to shop to be in a district
where there is a Trump-appointed judge that will likely render
the kind of decision that the petitioners are seeking.
So how do we remove political influence from this key part of our democracy?
We need a deep review of ethics in the court
and a code of ethics that the justices would be responsible for abiding by.
That’s right: There’s no current code of ethics for the highest justices
in the land.
Additionally, re-examining judicial selection is key.
If judges are only deciding cases in the way
that they want the cases to turn out, then they may not actually be acting
as judges, at least not in the way that our democracy needs of them.
Because judicial elections allow for donors to shape outcomes,
some advocates argue that all judges and justices
should instead be appointed, and that nominating processes should
include a diverse range of perspectives that reflect the public.
And for those jurisdictions that continue with judicial elections, transparency
is key.
Oftentimes, folks
don’t even know they can vote for judges and justices in their communities,
let alone whether those candidates are backed
by special interests. Other potential reform measures include
donor disclosures and term limits for judges and justices.
In our system of checks and balances,
courts are essential to democracy.
One of their biggest tasks is serving as a check on the other political branches.
If we want the judiciary to truly serve as a check,
we need to examine the systems in place that have allowed politics
to influence the one branch of government intended to be impartial.