The People's Courts

The People's Courts: pursuing judicial independence in America

JED HANDELSMAN SHUGERMAN
Copyright Date: 2012
Published by: Harvard University Press
https://www.jstor.org/stable/j.ctt24hjj7
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  • Book Info
    The People's Courts
    Book Description:

    In the United States, almost 90 percent of state judges have to run in popular elections to remain on the bench. The People’s Courts traces the history of this peculiarly American institution and the ongoing quest for an independent judiciary—one that would ensure fairness for all before the law—from the colonial era to the present.

    eISBN: 978-0-674-06282-5
    Subjects: Law, Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. Introduction: America’s Peculiar Institution
    (pp. 1-13)

    In 2002, a West Virginia jury hit Massey Energy, a West Virginia coal company, with a $50 million verdict for using illegal and fraudulent tactics to force a smaller company, Harman Mining, out of business. As Massey appealed this verdict in the court system, its CEO, Don Blankenship, recruited Brent Benjamin, a former state party treasurer with no judicial experience, to run against Justice Warren McGraw. Blankenship spent $3 million—the lion’s share of the funding for Benjamin’s campaign—to defeat Justice Warren McGraw. Most of Blankenship’s money financed “And for the Sake of the Kids,” an organization created just...

  4. CHAPTER ONE Declaring Judicial Independence
    (pp. 14-29)

    In the declaration of Independence, Thomas Jefferson included this in his list of American grievances against the Crown: “He [King George] has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.” Forty years later, Jefferson wrote a letter criticizing judicial appointments and life tenure. It began with a call for extending the founding principles by broadening suffrage and generally increasing the people’s direct control of the government. Jefferson noted that the federal judges “are dependent on none but themselves.” Life tenure had been progress for judicial in dependence...

  5. CHAPTER TWO Judicial Challenges in the Early Republic
    (pp. 30-56)

    Thomas jefferson had called for judicial independence from England, but he intended that kind of independence to translate into judicial accountability to the public. Jefferson and his followers focused more on judicial accountability as they rose to power over the Federalists after the “Revolution of 1800.” They took over the executive and the legislature on both the federal and state levels, and clashed with the Federalist holdovers in the judiciary. Their priority was to weaken the courts with their newfound powers in the other branches. An increased separation of powers or judicial independence would have undermined their strategy of using...

  6. CHAPTER THREE Judicial Elections as Separation of Powers
    (pp. 57-83)

    Thomas jefferson, in the same 1816 letter hailing Connecticut’s history of electing judges, also endorsed weakening the courts by making it easier to impeach judges and remove judges from the bench. Then he concluded by criticizing legislative appointment: “To give it to the legislature, as we do, is a violation of the principle of the separation of powers.”¹ Judicial elections had the potential to serve both of these goals: promoting judicial accountability to the people and judicial independence from the other branches.

    In the early republic, critics of the courts had ample methods for limiting judicial independence: impeachment, repealing judicial...

  7. CHAPTER FOUR Panic and Trigger
    (pp. 84-102)

    Two turning points led to the wave of judicial elections in the 1840s–1850s: the economic crisis of the early 1840s and the New York Constitutional Convention of 1846. The Panics of 1837 and 1839 and the ensuing depression that followed transformed American politics. After New York moved heaven and earth to build the Erie Canal, state governments around the country overspent on new canals, roads, and railroads in the 1830s. They expected economic good times to pay off their massive debts, but the depression threatened many states with bankruptcy. State legislatures shouldered the blame for folly, fiscal irresponsibility, and corruption....

  8. CHAPTER FIVE The American Revolutions of 1848
    (pp. 103-122)

    In the revolutions of 1848, popular uprisings swept most of Europe. The urban poor, peasants, the working class, middle-class reformers, and socialists rose up in arms against their monarchies and nobility. The United States has been contrasted with Europe for its lack of violence in these years.¹ Nevertheless, Americans had their own overlooked revolutions midcentury. While Europe’s poor and lower middle classes arose with the sword, their ethnonationalist leaders also arose with the pen, writing more than twenty new constitutions.² Many Americans also took up the same pen of constitution writing. The sheer volume of revisions between 1844 and 1853...

  9. CHAPTER SIX The Boom in Judicial Review
    (pp. 123-143)

    In the state conventions of the 1840s and 1850s, supporters of judicial elections hoped for a more aggressive judiciary on behalf of “the people.” They were at least half right. The first generation of elected judges certainly was aggressive: With an explosion of decisions striking down state statutes, they established a more widespread practice of judicial review in America. Many of these decisions dealt with the most controversial issues of the era, including slavery, liquor prohibition, takings of private property, taxation, school funding, private and public debt, corporate power, marriage and women’s property rights, freedom of contract, and criminal procedure.¹...

  10. CHAPTER SEVEN Reconstructing Independence
    (pp. 144-158)

    Observers of state courts have noticed a marked change in judicial elections. For most of the twentieth century, judicial elections were “sleepy” and “low key.”¹ Then, in the last two decades, they have become more raucous, expensive, “noisy and nasty” affairs—in other words, more like normal elections.² Judicial elections were not always sleepy or under the radar. Late nineteenth-century judicial races were hotly competitive and intensely partisan in many states, with special interests taking an active role in party nominations. Still, only rarely do the records show judicial candidates announcing their positions on particular issues. By the 1870s, concerns...

  11. CHAPTER EIGHT The Progressives’ Failed Solutions
    (pp. 159-176)

    The early twentieth century was a turning point in the perception of parties and of courts. The problems of party corruption and special interests had been apparent for a long time, but the progressives took on the issue more directly. The courts had their own crisis in a constitutional stand-off with progressive legislatures. In their efforts to reform both courts and parties, the progressives proposed several failed solutions, including nonpartisan elections and procedural checks on courts, as well as a solution that failed to catch on for a few decades: expert judicial selection by the professional bar.

    The constitutional conflict...

  12. CHAPTER NINE The Great Depression, Crime, and the Revival of Appointment
    (pp. 177-207)

    The model of professional selection and retention elections suggested by progressive lawyers was mostly ignored in the Progressive Era, but it established its first beachhead in California during the Great Depression, propelled by the creative use of anticrime rhetoric. The appeal of this appointment model was its promise to separate judges from electioneering and partisan politics, a new separation of powers through expertise. However, the California business interests behind the scenes found a way to tweak the design back to party control in their favor.

    In the wake of widespread corruption scandals and a crime wave, a young Oakland prosecutor...

  13. CHAPTER TEN The Puzzling Rise of Merit
    (pp. 208-240)

    The emergence of merit selection (initial selection by nominating panels including leaders of the state bar and other officials) during the Great Depression was a puzzle. Part of the answer was that business interests mobilized in response to the populist prolabor uprising in favor of elite selection. These interests were able to frame their probusiness reform as antipartisan, anticorruption, and most surprisingly, anticrime to win popular support.

    The merit revolution from 1950 through the late 1970s presents a similar puzzle. The “Missouri Plan” (and later, the “merit plan”) spread through nineteen states, mainly in the South, the Great Plains, and...

  14. CHAPTER ELEVEN Judicial Plutocracy after 1980
    (pp. 241-266)

    In the mid-twentieth century, judicial elections were “sleepy” and “low key” with relatively inexpensive campaigns.¹ This period followed labor’s increasing success in winning these elections in the early twentieth century, and it coincided with business interests shifting their efforts from winning judicial elections to reforming judicial elections. Judicial races were often unopposed.

    Something changed around 1980. After spending their capital (political and financial) on campaigns for merit reforms, businesses returned to trying to win judicial elections outright, and they did so by capitalizing on socially conservative issues and by pouring money into key races. Trial lawyers and other interests that...

  15. Conclusion: Interests, Ideas, and Judicial Independence
    (pp. 267-274)

    There are now four basic forms of judicial selection, each descended from the four stages of judicial development over American history, and each striking a different balance of judicial in de pen dence and judicial accountability. The age of judicial aristocracy produced the federal system of executive appointment and life tenure, and a few states in New England have hung on to this first model.¹ The age of judicial democracy produced the second model, competitive elections, whether partisan or nonpartisan. Over half of the states rely primarily on partisan or nonpartisan elections, and the age of judicial plutocracy has taken...

  16. Appendix A: Judicial Elections Timeline
    (pp. 276-294)
  17. Notes
    (pp. 295-368)
  18. Acknowledgments
    (pp. 369-372)
  19. Index
    (pp. 373-381)