We are so thankful to Benjamin G. Bishin, Thomas J. Hayes, Matthew B. Incantalupo, and Charles Anthony Smith for their generous review of Judging Inequality. We tried to write a book that covers a lot of ground both empirically (the backgrounds of judges, the composition of courts, and the position of the judiciary in state politics) and theoretically (judicial behavior, democratic theory, the role of partisanship in policy making). Their exceedingly kind review of our book does a deft and efficient job of summarizing our arguments and conclusions while also giving us—and we hope others!—something to think about moving forward.
The biggest point for consideration relates to the role of judicial elections in democratic policy making. We share Bishin and coauthors’ skepticism that judicial elections uniformly enhance accountability (just as no elections for any offices uniformly enhance accountability). On the one hand, we find in Judging Inequality that there is a tighter connection between public opinion and the votes of judges when those judges face both the electorate and the specter of a challenger to keep their seat on the bench. When judges run in uncompetitive retention elections or merely face reappointment, we find no statistically significant relationship between public opinion and judges’ decisions to cast a vote in favor of equality. In this way, our results provide some glimmer of hope that judicial elections might help translate the public’s preferences into enacted legal policy concerning equality. On the other hand, the relationship between public opinion and the outcomes of cases—whether equality actually gets enhanced—is tenuous, even in places with judicial elections.
We think the larger lesson of the book is that “the judges are not going to save us.” State high courts are part of the governing coalition and, owing to selection mechanisms, are unlikely to block the pernicious schemes of the majority. Even though most judges face the electorate in some way to stay on the bench, most state high court judges (and even a near-majority of formally “elected” judges) are initially chosen by political elites. These elites are savvy and know that judicial appointments matter. So, they select “good” judges, those judges make decisions that largely align with their ideologies, and the output of state high courts reflects those of the governing coalition appointing the judges. In short, the dream of liberals that judges may save the day is likely a hollow hope.
What is somewhat ironic about our findings is the fact that our conclusions directly contradict the original rationale for judicial elections: to remove courts from the thumb of the legislative and executive branches of government. Reformers thought that freeing judges from the need to please elites would enable the judiciary to make countermajoritarian decisions. What they seemingly did not foresee, and what we emphasize in Judging Inequality, is that the de facto operation of these institutions gives elites substantial sway over initial judicial selection. And, coupled with the broad formal grants of independence that judges have once on the bench, that level of control may be sufficient to align courts with the governing coalition over the long term.
Still, as the US Supreme Court seems likely to “return” the “final say” over rights (like abortion) back to state supreme courts, understanding exactly what sort of role judicial elections play for the substantive protection of rights, the promotion of equality or inequality, and the position of state high courts in a democratic, separation-of-powers system is imperative. Judging Inequality, in this regard, leaves more questions than answers; we hope others will continue to investigate these vital questions.
