The Growing Influence of Money in State Supreme Court Elections

In November, Pennsylvania set a national record for spending on supreme court elections. Negative ads that painted candidates as issuing “lenient sentences” and “fail[ing] to protect a child” circulated the airwaves and consequently set the tone for the campaign. And while the election is over, the ads may have a long-lasting effect on how judges handle criminal cases moving forward.

Across the country, a common thread in supreme court campaigns is whether judges are sufficiently “tough on crime.” Recent elections have accused judges or candidates of having “expressed sympathy for rapists,” having “sided with the predators,” having gone “liberal on crime” and having shielded a priest accused of molestation. Behind these ads are special interest groups—many with clear financial interests in cases that come before state courts—who appear to be coalescing around a strategy to exploit public-safety issues.

“Tough on crime” was the most common political theme aired in recent state supreme court elections, with a record 56 percent of TV ad spots either criticizing or touting the records of judges and candidates, according to a report we recently coauthored, Bankrolling the Bench: The New Politics of Judicial Elections 2013-14. More often than not, however, the money behind such ads has little to do with criminal justice.

In Illinois last year, a state supreme court justice running for a retention election was faced with a chilling ad featuring his photo and a narrator intoning, “The worst of the worst. Predators abusing children. Rapists. Murderers. Let off easily.” The ad came from Campaign for 2016, a Super PAC primarily funded by plaintiffs’ lawyers and law firms involved in an ongoing civil case against tobacco giant Philip Morris.

In another 2014 election, a group called Justice for All North Carolina ran an ad alleging that a state supreme court justice, Robin Hudson, “was not tough on child molesters, not fair to victims.” The group received $900,000 from the Washington, D.C.-based Republican State Leadership Committee, whose big donors include the U.S. Chamber of Commerce, Charlotte-based Duke Energy, and tobacco companies Reynolds American and Altria.

Of the 18 organizations that ran criminal-justice-themed ads in state supreme court elections from 2011 to 2014, only three have positions on the issue listed on their websites. Instead, many groups focus on taxes, the size of government, tort reform, or other business interests.

Multi-million dollar spending on state supreme court races have become the norm. Special-interest groups like Campaign for 2016 and Justice for All North Carolina accounted for a record 29 percent of overall expenditures in 2013-2014, spurred in part by the Supreme Court’s Citizens United decision in 2010. This new record suggests that ads geared toward criminal justice aren’t likely to go away.

As a result, even as bipartisan consensus forms on reining in mass incarceration, politicized judicial elections nevertheless push judges toward tough-on-crime stances. A recent study suggested that more TV ads in supreme court races make judges less likely to side with criminal defendants. They also affect public confidence in the courts: In a 2013 poll, 87 percent of Americans said they believe that campaign donations and independent spending by outside groups affect judges’ rulings.

In the U.S., 95 percent of all cases begin in state courts, heightening the concern of these elections. Thirty-eight states conduct some kind of election for their supreme courts—and these races are alarmingly indistinguishable from campaigns for legislatures or the executive branch. And nobody leaves a judicial election unscathed. As former Indiana Chief Justice Randall Shepard put it: “Even the winners ... end up so tarnished and beaten up they are not in a position to evoke from the public the same level of confidence.”

Without reform, Americans appearing in court may legitimately ask whether judges are deciding their cases based on the law and constitution—or out of fear of future TV ads accusing them of having “sided with the predators” or having “expressed sympathy for rapists.”

About the Authors

Alicia Bannon is senior counsel in the Democracy Program at New York University School of Law's Brennan Center for Justice.

Scott Greytak is a research analyst and policy counsel with Justice at Stake.

More comfortable online than out partying, post-Millennials are safer, physically, than adolescents have ever been. But they’re on the brink of a mental-health crisis.

One day last summer, around noon, I called Athena, a 13-year-old who lives in Houston, Texas. She answered her phone—she’s had an iPhone since she was 11—sounding as if she’d just woken up. We chatted about her favorite songs and TV shows, and I asked her what she likes to do with her friends. “We go to the mall,” she said. “Do your parents drop you off?,” I asked, recalling my own middle-school days, in the 1980s, when I’d enjoy a few parent-free hours shopping with my friends. “No—I go with my family,” she replied. “We’ll go with my mom and brothers and walk a little behind them. I just have to tell my mom where we’re going. I have to check in every hour or every 30 minutes.”

Those mall trips are infrequent—about once a month. More often, Athena and her friends spend time together on their phones, unchaperoned. Unlike the teens of my generation, who might have spent an evening tying up the family landline with gossip, they talk on Snapchat, the smartphone app that allows users to send pictures and videos that quickly disappear. They make sure to keep up their Snapstreaks, which show how many days in a row they have Snapchatted with each other. Sometimes they save screenshots of particularly ridiculous pictures of friends. “It’s good blackmail,” Athena said. (Because she’s a minor, I’m not using her real name.) She told me she’d spent most of the summer hanging out alone in her room with her phone. That’s just the way her generation is, she said. “We didn’t have a choice to know any life without iPads or iPhones. I think we like our phones more than we like actual people.”