Federal Courts

Federal judges are selected according to the procedures required by the federal Constitution — nominated by the President of the United States, and confirmed by the United States Senate. Similarly, state supreme court justices are chosen based on what their state’s constitution requires. While the selection methods vary across the country, ranging from gubernatorial appointment to legislative appointment, the most common method by far is selection via a state-wide election. Currently, thirty-eight states hold elections to choose state supreme court justices, making the United States one of the few countries in the world that uses popular elections to select judges.

Currently, thirty-eight states hold elections to choose state supreme court justices, making the United States one of the few countries in the world that uses popular elections to select judges.

State supreme court selection by election creates several problems, most notable of which being a strong conflict of interest for justices. While judges are expected to be neutral arbiters of law, elections also make them public figures whose employment is subject to the whim of the people. Thus, despite their ostensible impartiality, each decision they make can naturally be expected to be influenced by how it will affect their reelection. This hard reality has found to especially be true when judges make decisions during election cycles. Generally, judges who win state supreme court elections are appointed to time-limited terms ranging between 6-10 years. As their terms run up, their reelection campaigns begin, and the pressure to keep their job is at its peak.

Moreover, as the price to compete in state supreme court elections increases, candidates must rely more and more on campaign contributions — putting them more in their benefactors’ pockets.

As state supreme courts have come more into the public eye, their elections have received more attention as well. State supreme court races where a majority on the court is up for grabs now receive enormous influxes of cash. And while greater public attention can help hold state supreme court justices accountable, it can also exacerbate existing problems regarding neutrality in judges. More money is poured into state supreme court justice elections by outside parties, who each are trying to place a judge on the court who they believe will be sympathetic to their interests. Moreover, as the price to compete in state supreme court elections increases, candidates must rely more and more on campaign contributions — putting them more in their benefactors’ pockets.

$100 million. That’s how much money was poured into state supreme court races in one year. 2020 saw the largest amount of national spending on state supreme court races—almost 20 percent higher than the previous record set in 2004. Several states also saw their most expensive state supreme court elections, such as Wisconsin and North Carolina. Partisan and special interest spending in state supreme court elections has exploded over the past decade, and as the amount of money fueling these elections increases, so too does the risk of partial justice. 

While to the public, these interest groups proclaim to be contributing only to candidates they believe to be best qualified to offer neutral justice, their wallets tell a different story. As financially powerful benefactors realize that state supreme courts are growing in their power over consequential issues, they are not only beginning to invest in greater quantities, but also more effectively. Often contributions are made through complex systems that obscure both the total amount and the source of money. Currently, more than 75% of all money that comes into state supreme court elections are contributed through super PAC’s who are under no obligation to divulge the sources of their funds.

While spenders do their best to keep their identities secret, some larger influencers include the Judicial Confirmation Network (who has spent countless millions of dollars confirming conservative federal Supreme Court Justices such as Neil Gorsuch and Brett Kavanaugh) and the Republican State Leadership Committee. Special business interests have also increased their spending in state supreme court elections. For example, corporations in the oil industry donated $4.5 to ideologically friendly state court judges in Texas in 2020—more than any other year in the past decade.

It seems as though, with the right amount of money, anyone can purchase a seat on a state supreme court’s bench. Strategic spending can put a state supreme court justice in your pocket. But where should you invest your funds? The simple shopping list below should have your answer.

Social Media Advertisements: $190,000

State supreme court elections have evolved as they have become more intense. As such, candidates have realized that they need to reach voters in other ways. One such new way is social media. Spending on social media advertisements for state supreme court elections has increased exponentially in recent years. For example, in 2018, Facebook estimated that between $500,000 and $2 million were spent on advertisements on their platform alone, resulting in Facebook users seeing political ads regarding state supreme court elections 113 million times. Moreover, those advertisements are not bought by candidates themselves, but rather by interested groups in their support. Social media is becoming the battleground of elections, and the warring on those platforms has only increased since 2018. 

So how much should one budget for social media advertisements? The two groups who spent the most on Facebook advertisements for state supreme court candidates were Ohioans for a Healthy Economy and Justice for All Michigan. Those groups spent $233,000 and $152,000, respectively, and both candidates the groups supported went on to win their elections. Using those contributions as an example, you too can purchase a state supreme court justice — for $190,000.

Television Advertisements: $2,000,000

As state supreme court elections have become more consequential, more money has flowed into advertisements surrounding judicial candidates. For example, in 2020 alone, special interest groups spent $35 million on television advertisements alone — far more than most candidates spent themselves. And that number is only rising. Looking at the most recent state supreme court elections in 2022, outside groups have already spent dozens of millions of dollars. AdImpact, a firm that tracks political spending, estimates groups have spent over $57 million on television advertisements in 2022 alone. Of that $57 million, $47 million has been concentrated in battleground states where court majorities are up for grabs.

The outside group in the lead for television advertisement spending is the Republican State Leadership Committee (“RSLC”). The RSLC has historically been the biggest spender in state supreme court elections, contributing over $20 million in the past decade. In February, the RSLC publicly committed to “spending more on state court races [in 2022] than any year prior” — in other words, over $4 million. So far, the group has kept its promise. In Montana, Kentucky, and Ohio—three battleground supreme court states—the RSLC has spent $650,000, $375,000, and $2 million on television ads alone, respectively.

An unfortunate side effect of the increase in television advertisements funded by outside groups is the growing prevalence of negative advertisements. Interests groups are more likely than candidates or political parties to feature misleading advertisements criticizing other judges. Indeed, studies have shown that outside groups fund the creation of over two-thirds of all negative telection ads regarding state supreme court justices. These advertisements often misreprent judges’ rulings, influencing the behavior of incumbent judges as election seasons approach. 

These advertisements often misreprent judges’ rulings, influencing the behavior of incumbent judges as election seasons approach. 

The negative advertisements especially focus on a state justice’s past rulings regarding criminal defendants. Advertisements attacking state supreme court justices for imposing lenient sentences or overturning unfair verdicts run rampantly on television during election years. This in turn forces sitting state justices to crack down harder on crime in order to protect themselves from attacks and win reelection. Studies show that state court judges are more likely to sentence someone to death, issue longer sentences, and affirm convictions as election cycles approach. For example, in 2011, the Equal Justice Initiative found that Alabama supreme court justices were more likely to replace a criminal defendant’s life sentence with the death penalty during an election year.

And, just as these benefactors are not interested in impartial justice, they are also not motivated by a desire to promote criminal justice. Instead, attacks regarding criminal sentences are low hanging fruit to ensure the judicial candidate you want gets a seat on a state’s supreme court. 

That election, Justice McGraw lost to the candidate Blankenship supported. And that newly purchased justice went on to help overturn a $50 million ruling against the Massey Energy Company.

In 2004, Justice Warren McGraw voted with the majority of the West Virginia Supreme Court to send a juvenile sex offender to rehab instead of back to jail after the offender was caught drinking alcohol and smoking marijuana. That election year, Don Blankenship, the CEO of the coal processing company the Massey Energy Company, took advantage of that ruling to oust McGraw, who was historically unsympathetic to Blankenship’s corporate interests. Working secretly through political action committees, Blankenship spent over $2 million producing commercials claiming that McGraw had voted to “let a child rapist out of prison… to work at a local school.” The advertisements dubbed the incumbent as “Radical Warren McGraw” who was “too soft on crime” and “too dangerous for our kids.” That election, Justice McGraw lost to the candidate Blankenship supported. And that newly purchased justice went on to help overturn a $50 million ruling against the Massey Energy Company.

So how much should you spend on television advertisements to guarantee your state supreme justice of choice? Interested parties like Blankenship regularly spend millions on advertisements, as such spending is the most effective at influencing public opinion. While $2 million may seem like a steep price — that is the price of justice.

Direct Contributions: Four for $250,000

State supreme court candidates have naturally enjoyed a substantial boost in contributions as more eyes have watched their elections. For example, in the 2020 election cycle, candidates raised more than $62.6 million in funds — the largest amount ever. The majority of those contributions were provided by lawyers and business interests who had previously appeared before those courts, and were likely to argue before them again. The issues such donations create speak for themselves, especially as judicial candidates become more reliant on contributions. Regardless of whether or not the money donated necessarily causes bias in supreme court justices, even the appearance that it does so is damaging to the public’s faith in the justice system. 

But how much should you spend if you would like a state supreme court justice for yourself? A look at Texas’s 2020 supreme court election provides a helpful estimate. That year, Apache Corp., a Houston oil company, was held liable for $900,000 in damages after losing an age and gender discrimination lawsuit to a former employee. Apache subsequently appealed that lower court decision to the Texas Supreme Court, asking them to review and potentially overturn the jury verdict. The state supreme court swiftly declined.

In almost all cases, that would be the end of the story. Apache Corp. would pay up, and justice would presumably be served. However, in Texas, litigants can ask the state supreme court to reconsider their decisions, and, in October, Apache Corp. notified the court that it intended to file such an appeal.

While such a move generally fails — the Texas supreme court denies such appeals 98 percent of the time — Apache Corp. accompanied their appeal with something very few litigants can offer: a $250,000 donation. That donation was 100 times more than the oil company had ever donated to a judicial race in the past. The money was given by Apache Corp. to the Judicial Fairness PAC in support of the campaigns of four corporate-friendly Texas supreme court justices up for reelection. That PAC then used that money, along with another $4 million crowd sourced from other interest groups, to support those four incumbent Texas supreme court justices. Each of those justices won. 

Several weeks later, the state supreme court suddenly changed its mind. The court granted Apache’s motion for reconsideration and threw out the lower court’s ruling. Siding with Apache, the supreme court ruled that the oil company was not guilty of employment discrimination, and the $900,000 jury award was overturned.

Apache Corp. turned a $900,000 bill into a $650,000 profit, simply by spending $250,000 to ensure the reelection of specific judges. When questioned about the influence the donation may have had on their victory, Apache Corp. stated merely that it contributed “to ensure the Texas Supreme Court continued to be composed of fair, experienced and highly qualified judges.” 

Apache Corp. turned a $900,000 bill into a $650,000 profit, simply by spending $250,000 to ensure the reelection of specific judges.

Interested organizations such as Apache Corp. purchase “justice” everyday, and you can too! — For $250,000.

Total Amount: $2,440,000

In many states, justice has a price. For $2,440,000, an individual can essentially guarantee themself at least one seat on a state’s supreme court bench. With that seat comes favorable decisions, partial outcomes, and a broken justice system. Having a neutral judge’s job security depend upon highly contested elections is a recipe for disaster. Judges naturally feel pressure to act not in line with justice, but instead with the fundraisers who keep them employed. Sitting state supreme court justices are often allowed to directly solicit campaign funds from potential benefactors, acting more like politicians than impartial jurists.

In light of these issues, advocacy groups have begun urging states to reform their supreme court selection process. These reforms largely revolve around eliminating state supreme court elections entirely and instead using an independent nominating commission to place justice’s on the bench, and not allowing justices to serve on the supreme court for more than one term. Both of those proposals would alleviate the public pressure justices feel when making consequential decisions. Regardless of the exact solution, Americans are far more likely to end up in state than federal court, and the one in robes before them should not be decided by those with the deepest pockets.