Judicial independence and nonpartisan elections

Wisconsin Law Review

Volumn 2009, Issue 1, 2009, Pages 21-66

  Canes Wrone, Brandice ^a   Clark, Tom S ^b,c  

^a PRINCETON UNIVERSITY   (United States)

^b Department of Political Science ^*

^c EMORY UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 67649557087     PISSN: 0043650X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (228)

1. Jane Ann Morrison, Losers Can Look to God or Other Outside Forces to Explain Election Results, LAS VEGAS REV.-J., Nov, 9, 2006, at IB.
2. AM. BAR ASS'N, JUSTICE IN JEOPARDY: REPORT OF THE AMERICAN BAR ASSOCIATION COMMISSION ON THE 21st CENTURY JUDICIARY app. A, at 4 (2003), available at http://www.abanet. org/judind/jeopardy/pdf/report.pdf.
3. See, e.g., Amy B. Atchison et al., Judicial Independence and Judicial Accountability: A Selected Bibliography, 72 S. CAL. L. REV. 723 (1999);
4. Philip L. Dubois, Accountability, Independence, and the Selection of State Judges: The Role of Popular Judicial Elections, 40 SW. L.J. 31, 31 (1986) (& quot;[N]o single subject has consumed as many pages in law reviews and law-related publications over the past fifty years as the subject of judicial selection.& quot;);
5. James L. Gibson, Judicial Institutions, in The Oxford Handbook of Political Institutions 514, 528-30 (R.A.W. Rhodes et al. eds., 2006) (discussing this research agenda and issues that remain insufficiently addressed).
6. See, e.g., Charles M. Cameron, Judicial Independence: How Can You Tell It When You See It? And, Who Cares?, in Judicial Independence at the
7. Crossroads: An Interdisciplinary Approach 134, 138-40 (Stephen B. Burbank & Barry Friedman eds., 2002); Steven P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law, 62 U. CHI. L. REV. 689, 696 (1995); Richard B. Saphire & Paul Moke, The Ideologies of Judicial Selection: Empiricism and the Transformation of the Judicial Selection Debate, 39 U. TOL. L. REV. 551, 559 (2008).
8. See, e.g., Cameron, supra note 4, at 142-43 (describing several studies of the relationship between judicial independence and economic growth); Rafael La Porta et al., Judicial Checks and Balances, 112 J. POL. ECON. 445, 445 (2004) (establishing a relationship between judicial independence and political freedom as well as between judicial independence and economic freedom).
9. See Stephen B. Burbank & Barry Friedman, Reconsidering Judicial Independence, in Judicial Independence at the Crossroads: An Interdisciplinary Approach, supra note 4, at 9, 14-16 (noting that, while judicial independence and judicial accountability may not be mutually exclusive, an inherent tension exists between these concepts);
10. Gibson, supra note 3, at 528 (arguing that judicial & quot;independence and accountability are locked in zero-sum tension with each other& quot;).
11. Gibson, supranote 3, at 528.
12. The term nonpartisan elections conventionally refers to competitive elections in which neither candidate's partisan affiliation is placed on the ballot. Retention elections, in which incumbent judges do not face any opponent, also are nonpartisan in that the incumbents' parties are not listed on the ballot; however, the term nonpartisan elections typically does not refer to retention elections. For verification of these conventions and a full list of procedures for initial selection and reselection, see Am. Judicature Soc'y, Judicial Selection in the States: Appellate and General Jurisdiction Courts (2007), available at http://www.ajs.org/selection/ docs/Judicial%20Selection%20Charts.pdf; F. Andrew Hanssen, Learning About Judicial Independence: Institutional Change in the State Courts, 33 J. LEGAL STUD. 431, 443 (2004).
13. See, e.g., Daniel Berkowitz & Karen Clay, The Effect of Judicial Independence on the Courts: Evidence from the American States, 35 J. LEGAL STUD. 399, 416-17 (2006);
14. Lee Epstein et al., Selecting Selection Systems, in Judicial Independence at the Crossroads: An Interdisciplinary Approach, supra note 4, at 191, 207-08; AM. BAR ASS'N, supra note 2, app. A, at 4.
15. See Melinda Gann Hall, State Supreme Courts in American Democracy: Probing the Myths of Judicial Reform, 95 AM. POL. SCI. REV. 315, 315 (2001) (& quot;[T]he premises underlying the three election systems [of partisan, nonpartisan, and retention elections] have not been subjected to scientific scrutiny, although they have guided the choices of state governments in recent decades.& quot;);
16. Saphire & Moke, supra note 4, at 552 (arguing that legal scholarship and policy reformers should employ & quot;empirical evidence to move the judicial selection debate outside its traditional ideological parameters& quot;). But see id. at 578-83 (conducting empirical analysis that compares the tort decisions of judges facing retention elections with the decisions of judges facing other types of elections).
17. AM. BAR ASS'N, supra note 2, app. A, at 4.
18. Sandra Day O'Connor, Op-Ed., Justice for Sale, WALL ST. J., NOV. 15, 2007, at A25 (& quot;The first step that a state like Pennsylvania can take to reverse this trend is replace the partisan election of its judges with a merit-selection system, or at least with a nonpartisan system in which the candidates do not affiliate with political parties.& quot;).
19. See, e.g., Berkowitz & Clay, supra note 9, at 416-17;
20. Epstein et al., supra note 9, at 207-08;
21. Hanssen, supra note 8, at 460-61.
22. David Klein & Lawrence Baum, Ballot Information and Voting Decisions in Judicial Elections, 54 POL. RES. Q. 709, 719-20 (2001) (discussing the effect of partisan labels on voting behavior); see also Shanto Iyengar, The Effects of Media-Based Campaigns on Candidate and Voter Behavior: Implications for Judicial Elections, 35 IND. L. REV. 691, 693 (2002) (& quot;[Ijin the case of partisan elections . . . voters rely on their party affiliations on the assumption that the candidate of their party is more responsive to their preferences.& quot;).
23. See, e.g., Peter D. Webster, Selection and Retention of Judges: Is there One & quot;Best& quot; Method?, 23 FLA. ST. U. L. REV. 1, 25-26 (1995) (noting that nonpartisan elections, by removing partisan political considerations from the electoral process, limit the information available to voters);
24. Kurt E. Scheuerman, Comment, Rethinking Judicial Elections, 72 OR. L. REV. 459, 461 (1993) (commenting that nonpartisan elections lead to a more representative judiciary but limit the knowledge of voters).
25. We recognize that some of these state courts of last resort, such as the New York Court of Appeals, have names that do not include the term supreme court. However, scholars and policy makers commonly refer to these entities collectively as state supreme courts. We follow this practice.
26. Hanssen, supra note 8, at 441-45 (observing that state legislatures had substantial control over the courts during the postcolonial period).
27. Id. at 441-43; see also Larry C. Berkson, Judicial Selection in the United States: A Special Report, 64 JUDICATURE 176, 176 (1980) (documenting the various procedures across the states in the postcolonial era).
28. Berkson, supra note 18, at 176.
29. Id.
30. Indeed, some reformers were concerned with reducing the influence of special interests, particularly property owners. See James E. Lozier, The Missouri Plan a/k/a Merit Selection: Is It the Best Solution for Selecting Michigan's Judges?, 75 MICH. B.J. 918, 918-19 (1996).
31. Kermit L. Hall, Progressive Reform and the Decline of Democratic Accountability: The Popular Election of State Supreme Court Judges, 1850-1920, 1984 AM. B. FOUND. RES. J. 345, 347-48;
32. Hanssen, supra note 8, at 441 (noting that the reform was intended to make judges independent of the legislature by giving them & quot;a power base of their own, through popular elections& quot;).
33. Hall, supra note 22, at 347-48;
34. see also Caleb Nelson, A Re-evaluation of Scholarly Explanations for the Rise of the Elective Judiciary in Antebellum America, 37 AM. J. LEGAL HIST. 190, 203 (1993) (& quot;Hall is correct that the reformers who backed the elective judiciary intended to check legislatures, but he is wrong to suggest that they identified legislatures with popular majorities. Indeed, the delegates wanted to check legislatures precisely because the legislatures were /?o& curret;reliably majoritarian.& quot;).
35. Hanssen, supra note 8, at 446-48.
36. Samuel Latham Grimes, & quot; Without Favor, Denial, or Delay& quot;: Will North Carolina Finally Adopt the Merit Selection of Judges?, 76 N.C. L. REV. 2266, 2273 (1998) (& quot;Political machines soon gained control of the judicial selection process. Citizens came to view the judiciary as corrupt, incompetent, and controlled by special interests.& quot;);
37. see also Berkson, supra note 18, at 177-78 (noting the role of political parties in selecting judicial candidates during this period).
38. Hanssen, supra note 8, at 448-51;
39. see also Amy Bridges, Morning Glories: Municipal Reform in the Southwest 72-73 (1997) (discussing the push by Progressives for nonpartisan elections in various types of political offices);
40. Herbert M. Kritzer, Law Is the Mere Continuation of Politics by Different Means: American Judicial Selection in the Twenty-First Century, 56 DEPAUL L. REV. 423, 429 (2006) (& quot;While nonpartisan elections were a part of the progressive movement, eliminating partisan elections was also a goal of the reformers who sought to end the dominance of political machines in major cities and in many states.& quot;).
41. See Hanssen, supra note 8, at 449;
42. see also Epstein et al., supra note 9, at 198-99 (discussing scholarship that suggests reformers hoped to increase judicial independence by adopting nonpartisan elections). But cf. Epstein et al., supra note 9, at 214-17 (emphasizing that reformers often are driven by self-interested political motivations).
43. Bradley C. Canon, The Impact of Formal Selection Processes on the Characteristics of Judges-Reconsidered, 6 LAW & SOC'Y REV. 579, 580 (1972).
44. Hanssen, supra note 8, at 449-50.
45. Id. at 450.
46. Id. at 434.
47. See id. at 455.
48. Grimes, supra note 25, at 2273;
49. see also Hall, supra note 22, at 357 (& quot;At the very least these reforms seem to have prompted voter apathy by eliminating the best means of identifying candidates-party affiliation.& quot;).
50. See Hall, supra note 22, at 356-62.
51. See, e.g., Berkson, supranote 18, at 177 (& quot;New candidates for judgeships were regularly selected by party leaders and thrust upon an unknowledgeable electorate, which, without the guidance of party labels, was not able to make reasoned choices.& quot;); Grimes, supra note 25, at 2273 (observing that when states adopted nonpartisan elections between 1870 and 1930, parties still controlled the selection of candidates).
52. Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, 20 J. AM. JUDICATURE SOC'Y 178, 186 (1937).
53. Hanssen, supranote 8, at 451-52.
54. Epstein et al., supra note 9, at 199.
55. Id.
56. Id. at 199-200.
57. Id. at 200.
58. See AM. JUDICATURE SOC'Y, supra note 8.
59. For instance, in Pennsylvania, judges initially face a partisan election but retain their positions through retention elections. See Hanssen, supra vote 8, at 443.
60. See AM. JUDICATURE SOC'Y, supra note 8.
61. AM. BAR ASS'N, supra note 2, app. A, at 4.
62. Unlike the text of the recommendations, which represents official ABA policy, the supplementary commentary by the ABA president does not necessarily reflect the official position of the association.
63. Id. at 77 (& quot;The net effect [of partisan elections] is to further blur, if not obliterate, the distinction between judges and other elected officials in the public's mind by conveying the impression that the decision making of judges, like that of legislators and governors, is driven by allegiance to party, rather than to law. It is therefore unsurprising that many of the most extreme examples of independence-threatening election-related behavior have occurred in states that select their judges in either openly partisan elections or elections that are nonpartisan in name only.& quot;).
64. See sources cited supra note 13.
65. Philip L. Dubois, The Significance of Voting Cues in State Supreme Court Elections, 13 L. & SOC'Y REV. 757, 759 (1979) (observing that judicial electorates lack the information possessed by voters in presidential and congressional races);
66. see also John Ferejohn, Judicializing Politics, Politicizing Law, 65 LAW & CONTEMP. PROBS. 41, 53 (2002) (noting that judicial elections tend to be & quot;low- information affairs& quot;).
67. See John E. Mueller, Choosing Among 133 Candidates, 34 PUB. OPINION Q. 395, 402 (1970) (discussing the fact that judicial elections tend to involve & quot;minimal information& quot;). See generally Gary C. Bryne & J. Kristian Pueschel, But Who Should I Vote for for County Coroner?, 36 J. POL. 778, 778 (1974) (observing the lack of information that voters have about many low-profile elected officials).
68. See, e.g., How Much Do Voters Know or Care About Judicial Candidates?, 38 JUDICATURE 141, 141-42 (1955) (finding that only 30 percent of voters could name a judge they had voted for within ten days of a judicial election);
69. Mary L. Volcansek, An Exploration of the Judicial Election Process, 34 W. POL. Q. 572, 572 (1981) (describing that previous studies suggest voters know little about judicial candidates).
70. See Canon, supra note 28, at 580.
71. See, e.g., HENRY R. Glick & Craig F. Emmert, Selection Systems and Judicial Characteristics: The Recruitment of State Supreme Court Judges, 70 JUDICATURE 228, 231-33 (1987) (observing that judges in partisan systems are more likely to come from prestigious law schools and to have more experience than judges in nonpartisan systems); Hall, supra note 10, at 316 (discussing evidence that & quot;the professional credentials (e.g., prestige of legal education, legal and judicial experience) of judges are quite similar, regardless of the method of selection& quot;).
72. Lawrence Baum & Marie Hojnacki, & quot;New-Style& quot; Judicial Campaigns and the Voters: Economic Issues and Union Members in Ohio, 45 W. POL. Q. 921, 921 (1992).
73. See, e.g., PATRICK M. MCFADDEN, ELECTING JUSTICE: THE LAW AND ETHICS OF JUDICIAL ELECTION CAMPAIGNS 77-111 (1990) (discussing issue-based campaign activity in modern judicial campaigns);
74. Iyengar, supra note 14, at 695 (describing the increased use of television and radio advertisements that describe judges' policy positions);
75. Roy Schotiand, Proposed Legislation on Judicial Election Campaign Finance, 64 OHIO ST. L.J. 127, 128 (2003) (noting the use of & quot;issue ads& quot; in judicial campaigns).
76. See, e.g., Lee Epstein & Jeffrey A. Segal, Advice and Consent: The Politics of Judicial appointments 101-02 (2005) (discussing the growing importance of special-interest groups in the confirmation of United States Supreme Court justices);
77. Gregory A. Caldeira & John R. Wright, Lobbying for Justice: The Rise of Organized Conflict in the Politics of Federal Judgeships, in Contemplating Courts 44, 46-59 (Lee Epstein ed., 1995) (documenting the role of special-interest groups from the nineteenth century through the Clinton administration).
78. See, e.g., Lawrence Baum, Judicial Elections and Judicial Independence: The Voter's Perspective, 64 OHIO ST. L.J. 13, 33 (2003) (& quot;What has caused the growth of interest-group participation in judicial campaigns? The key factor is probably contagion: when some groups seemed to achieve success in defeating judges, other groups on the same side of interest-group conflicts picked up the idea.& quot;); Call to Action: Statement of the National Summit on Improving Judicial Selection, 34 LOY. L.A. L. REV. 1353, 1354 (2001) (arguing that the increased role of special interests in judicial contests & quot;present[s] a particularly grave and immediate threat& quot;).
79. See, e.g., Joanna Cohn Weiss, Note, Tough on Crime: How Campaigns for State Judiciary Violate Criminal Defendants' Due Process Rights, 81 N.Y.U. L. REV. 1101, 1104 (2006) (discussing & quot;inflammatory mass mailings& quot; about a decision by Tennessee Supreme Court Justice Penny White);
80. Scott D. Wiener, Note, Popular Justice: State Judicial Elections and Procedural Due Process, 31 HARV. C.R.-C.L. L. REV. 187, 197 (1996) (& quot;In the age of thirty-second campaign commercials and mass mailings, any decision can be twisted to meet an opponent's political ends.& quot;).
81. Anthony Champagne, Television Ads in Judicial Campaigns, 35 IND. L. REV. 669, 671-74 (2002) (documenting the rise and significance of television advertising in judicial campaigns);
82. see also Deborah Goldberg & Mark Kozlowski, Constitutional Issues in Disclosure of Interest Group Activities, 35 IND. L. REV. 755, 755-56 (2002) (describing interest-group expenditures on television advertising during the state supreme-court elections of 2000).
83. See Marie A. Failinger, Can a Good Judge Be a Good Politician? Judicial Elections from a Virtue Ethics Approach, 70 MO. L. REV. 433, 462 (2005) (& quot;[T]he direction of television advertising is toward 'hard-hitting and negative' ads, particularly those that are put out by third-party interest groups, since their candidate does not suffer any backlash from their negativity.& quot;);
84. Michelle T. Friedland, Disqualification or Suppression: Due Process and the Response to Judicial Campaign Speech, 104 COLUM. L. REV. 563, 626 (2004) (noting that the majority of third-party advertisements in the 2000 state supreme-court elections included attacks on candidates);
85. Lindsay E. Lippman, Note, Republican Party of Minnesota v. White: The End of Judicial Election Reform?, 13 CORNELL J.L. & PUB. POL'Y 137, 146 (2003) (noting that special-interest groups are the primary force behind television attack ads on judicial candidates).
86. See Failinger, supra note 60, at 462-64 (discussing numerous examples of single-issue advertisements);
87. Ryan L. Souders, A Gorilla at the Dinner Table: Partisan Judicial Elections in the United States, 25 REV. LITIG. 529, 550 (2006) (& quot;Television advertisements that often distort candidates' views in short, thirty-second blurbs have become the weapons of choice in high-stakes state supreme court races.& quot;).
88. Roy A. Schotland, New Challenges to States' Judicial Selection, 95 GEO. L.J. 1077, 1080-81 (2007) (detailing the average expense of judicial campaigns over time); see also Nathan Richard Wildermann, Case Note, Bought Elections: Republican Party of Minnesota v. White, 11 GEO. MASON L. REV. 765, 769 (2003) (& quot;The cost of running a campaign for the judiciary has increased at an alarming rate over the past two decades.& quot;).
89. Steven Walters & Stacy Forster, Doyle Campaign Fund Tops $1 Million, Milwaukee J. Sentinel, July 22, 2008, at B3.
90. See Randall T. Shepard, Electing Judges and the Impact on Judicial Independence, 42 TENN. B.J. 22, 24 (2006) (describing the increasing pressure on judges to state their positions in response to interest-group questionnaires).
91. See, e.g., Anthony Champagne & Kyle Cheek, The Cycle of Judicial Elections: Texas as a Case Study, 29 FORDHAM URB. L.J. 907, 931 (2002) (& quot;As judicial elections have become high profile, media coverage has also increased, and scrutiny has become more intense.& quot;); Iyengar, supra note 14, at 692 (observing that judicial campaigns will attempt to attract & quot;free& quot; media).
92. See Roy A. Schotland, To the Endangered Species List, Add: Nonpartisan Judicial Elections, 39 WILLAMETTE L. REV. 1397, 1418 n.67 (2003).
93. Separately, some research has argued that issue-based campaigns are a natural consequence of the fact that judges have become more central to policy making over time. See Roy A. Schotland, Financing Judicial Elections, 2000: Change and Challenge, 2001 M.S.U.-D.C.L. L. REV. 849, 851 (& quot;A primary catalyst of change in judicial elections has been the courts' increasingly prominent role in high-visibility policy matters such as abortion, gun control, the death penalty, and school vouchers.& quot;).
94. See Baum, supra note 57, at 36;
95. Steve Ford, Op-Ed., Mind Made Up- He's a Conservative, NEWS & OBSERVER (Raleigh, N.C.), Nov. 10, 2002, at A30; Hot- Button Issues Pose Threat to Judicial Retention, Bar Leaders Told, METROPOLITAN NEWS ENTERPRISE (Los Angeles, Cal.), Jan. 13, 1998, at 4; Prosecutors' Group Praises Justices, Associated Press St. & Local Wire, Sept. 23, 1998.
96. Anthony Champagne, Interest Groups and Judicial Elections, 34 LOY. L.A. L. REV. 1391, 1402 (2001).
97. Press Release, Kentucky Judicial Campaign Conduct Committee, Committee Finds Judge's Ad Misrepresents Opponent's Record (Oct. 27, 2006), available at http://www.judicialcampaignconduct.org/committees/Electronic %20 Committee%20Files/KY%20misc/kjccchome.pdf.
98. See Cynthia Canary & Bert Brandenburg, Editorial, Grilling By Interest Groups Puts Judges on the Hot Seat, CHI. SUN-TIMES, Jan. 27, 2006, at 39; Adam Liptak, Judicial Races in Several States Become Partisan Battlegrounds, N.Y. TIMES, Oct. 24, 2004, at Al.
99. See JAMES SAMPLE ET AL., JUSTICE AT STAKE CAMPAIGN, THE NEW POLITICS OF JUDICIAL ELECTIONS 2006, at 30 (2007), available at http://brennan.3cdn.net/49c18b6cb18960b2f9-z6m62gwji.pdf.
100. Ruth Marcus, Will the Attack A ds Come to Order?; Judicial Elections Just Keep Getting Pricier and Stinkier, PITTSBURGH POST-GAZETTE, June 3, 2007, at H-3.
101. Robert Barnes, Judicial Races Now Rife with Politics: Corporate Funds Help Fuel Change, WASH. POST, Oct. 28, 2007, at Al.
102. See, e.g., Harris v. Alabama, 513 U.S. 504, 520 (1995) (Stevens, J., dissenting) (noting that a high-profile issue such as the death penalty may cause elected state judges to be too responsive to public opinion);
103. Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. REV. 759, 769 (1995) (discussing the need forjudges facing reelection to embrace public opinion about the death penalty); Richard R.W. Brooks & Steven Raphael, Life Terms or Death Sentences: The Uneasy Relationship Between Judicial Elections and Capital Punishment, 92 J. CRIM. L. & CRIMINOLOGY 609, 611 (2002) (& quot;When up for re-election, most judges simply cannot afford to ignore popular sentiment about the death penalty.& quot;);
104. Melinda Gann Hall, Constituent Influence in State Supreme Courts: Conceptual Notes and a Case Study, 49 J. POL. 1117, 1120-23 (1987) (observing a relationship between a judge's electoral calendar and sentencing behavior);
105. Phyllis Williams Kotey, Public Financing for Nonpartisan Judicial Campaigns: Protecting Judicial Independence While Ensuring Judicial Impartiality, 38 AKRON L. REV. 597, 603-06 (2005) (discussing the role of death- penalty cases in heated state supreme-court elections in Tennessee and Texas).
106. John T. Wold & John H. Culver, The Defeat of the California Justices: The Campaign, the Electorate, and the Issue of Judicial Accountability, 70 JUDICATURE 348, 349-50 (1987) (documenting the salience of death-penalty decisions in the 1986 election).
107. See Hojnacki & Baum, supra note 54, at 923-24 (documenting the importance of business and union organizations in judicial elections); Robert Ankeny, Business Hears a Call to Action in Judicial Races, CRAIN'S DETROIT BUS., June 8, 1998, at 27.
108. Morrison, supra note 1.
109. 71 P.3d 1269 (Nev. 2003). For further details on the criticism received by Justice Becker, see Morrison, supra note 1; Nancy Becker Faces Voters, LAS VEGAS REV.-J., Sept. 22, 2006, at 8B; Vin Suprynowicz, November's Election a Chance to Hose Out the Servants' Quarters, LAS VEGAS REV.-J., Oct. 1, 2006, at ID; Carri Geer Thevenot, Supreme Court's Becker Falls to Saitta: Douglas Retains Seat, LAS VEGAS REV.-J., Nov. 8, 2006, at 5B.
110. See Nancy Becker Faces Voters, supra note 79.
111. 142 P.3d 339 (Nev. 2006).
112. See Thevenot, supra note 79. Particularly in the wake of Kelo v. New London, 545 U.S. 469 (2005), eminent domain has become a particularly salient issue for voters and their approval of the courts.
113. See Carol Morello, W.Va. Supreme Court Justice Defeated in Rancorous Contest, WASH. POST, Nov. 4, 2004, at A15.
114. See Jennifer Bundy, Judge Dismisses McGraw Libel Lawsuit: Ruling Says Ads Were Not Defamatory Because They Were True, CHARLESTON DAILY MAIL (W. Va), July 26, 2005, at 6A. The decision was from State v. Arbaugh, 595 S.E.2d 289 (W. Va. 2004).
115. See Morello, supra note 83.
116. Id.
117. MODEL CODE OF JUDICIAL CONDUCT § 4 (2007). The ABA first adopted a code of judicial ethics in 1924. In 1972, it promulgated the Model Code, which was later updated in 1992 out of concerns about the constitutionality of some of its provisions. For a fuller discussion, see Alexandrea Haskell Young, The First Chink in the Armor? The Constitutionality of State Laws Burdening Judicial Candidates After Republican Party of Minnesota v. White, 77 S. CAL. L. REV. 433, 435-36 (2004).
118. See Young, supra note 87, at 435-36.
119. Peter Gregory Juetten, Case Note, Should They Stay or Should They Go: The Implications o/Republican Party of Minnesota v. White on Restrictions of Speech During Judicial Election Campaigns, 56 ARK. L. REV. 677, 684-87 (2003) (describing how states used to regulate speech by judicial candidates more strictly than that by candidates for legislative or executive offices).
120. See, e.g., Stretton v. Disciplinary Bd., 944 F.2d 137, 142-46 (3d Cir. 1991) (determining that regulation limiting judicial candidates' ability to announce their views on specific issues does not inherently violate the First Amendment); Morial v. Judiciary Comm'n, 565 F.2d 295, 306-07 (5th Cir. 1977) (ruling that requiring a judge to resign before announcing policy positions does not violate the First Amendment); ACLU v. Florida Bar, 744 F. Supp. 1094, 1098 (N.D. Fla. 1990) (determining that prohibiting judges from discussing political issues is not sufficiently narrow); Ackerson v. Ky. Judicial Ret. & Removal Comm'n, 776 F. Supp. 309, 313-15 (W.D. Ky. 1991) (determining that a state may regulate campaign pledges on issues likely to come before the court); Berger v. Supreme Court of Ohio, 598 F. Supp. 69, 75-76 (S.D. Ohio 1984) (ruling that a prohibition against judges making campaign statements does not violate the First Amendment).
121. But see Buckley v. 111. Judicial Inquiry Bd., 997 F.2d 224, 227-30 (7th Cir. 1993) (ruling that the regulation of campaign speech in judicial contests violates the First Amendment).
122. 536 U.S. 765 (2002).
123. Id. at 768 (quoting MINN. CODE OF JUDICIAL CONDUCT CANON 5(A)(3)(d)(i) (2000)).
124. See Christopher Rapp, The Will of the People, the Independence of the Judiciary, and Free Speech in Judicial Elections After Republican Party of Minnesota v. White, 21 J.L. & POL. 103, 120 (2005). These rulings included ones on abortion as well as crime and welfare. Id.
125. Id. at 124.
126. White, 536 U.S. at 803 (Stevens, J., dissenting) (& quot;The disposition of this case on the flawed premise that the criteria for the election to judicial office should mirror the rules applicable to political elections is profoundly misguided.& quot;). See generally Michael R. Dimino, Pay No Attention to that Man Behind the Robe: Judicial Elections, the First Amendment, and Judges as Politicians, 21 YALE L. & POL'Y REV. 301, 319-20 (2003) (discussing Justice Stevens's and Ginsburg's dissents).
127. Weaver v. Bonner, 309 F.3d 1312, 1320-21 (11th Cir. 2002).
128. See Iyengar, supra note 14, at 694-96 (arguing that advertising shapes the agenda and frames the information voters have about candidates). In many ways, this trend is similar to that in modern presidential or congressional campaigns, where voters learn small pieces of information from advertising and sound bites. See, e.g., Tali Mendelberg, The Race Card: Campaign Strategy, Implicit Messages, and the Norm of Equality 209-36 (2001) (documenting experimental evidence about the effect of sound-bite information on voters' opinions about candidates).
129. For a formal model that analyzes these incentives, see Brandice Canes- Wrone & Kenneth W. Shorts, When Do Elections Encourage Ideological Rigidity?, 101 AM. POL. SCI. REV. 273, 276 (2007).
130. Baum, supra note 57, at 24-25.
131. See sources cited supra note 14.
132. While this argument challenges the conventional wisdom, we do not claim to be the first to recognize this possibility. See, e.g., Charles H. Franklin, Behavioral Factors Affecting Judicial Independence, in Judicial Independence at the Crossroads: An Interdisciplinary Approach, supra note 4, at 148, 152-55 (noting this possibility, but not testing for it).
133. See sources cited supra note 14.
134. See sources cited supra note 68.
135. See, e.g., Jan Crawford Greenburg, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court 221-27 (2007) (arguing that the use of a litmus test on a candidate's position on abortion is a central issue in federal judicial nominations).
136. 410 U.S. 113 (1973).
137. 505 U.S. 833 (1992).
138. 550 U.S. 124 (2007);
139. see also Stenberg v. Carhart, 530 U.S. 914 (2000).
140. E.g., Planned Parenthood Ass'n of Nashville, Inc. v. McWherter, 817 S.W.2d 13, 14 (Tenn. 1991) (determining whether minors could obtain an abortion without parental consent).
141. E.g., Operation Rescue-National v. Planned Parenthood, 975 S.W.2d 546, 561 (Tex. 1998) (ruling on the extent to which buffer zones between an abortion clinic and antiabortion protests restrict protestors' freedom of expression).
142. E.g., Bell v. Low Income Women of Texas, 95 S.W.3d 253, 255 (Tex. 2002) (ruling on whether the state must provide Medicaid funding for abortions).
143. E.g., Ex parte Anonymous, 808 So. 2d 1025, 1026 (Ala. 2001) (addressing a judicial bypass for a particular minor to receive an abortion without parental consent).
144. See, e.g., Greg D. Adams, Abortion: Evidence of an Issue Evolution, 41 AM. J. POL. SCI. 718, 731-33 tbl.l (1997) (documenting the increased correlation between voters' preferences about abortion and choice for president during the 1980s).
145. Hanssen, supra note 8, at 443.
146. See infra Part IV.C.
147. Texas has two courts of last resort, the Supreme Court (for civil cases) and the Court of Criminal Appeals. See Courts.state.tx.us, Court Structure of Texas, http://www.courts.state.tx.us (last visited Feb. 14, 2009). Our data encompass both courts.
148. See Hanssen, supra note 8, at 442-43 tbl. 1.
149. Judicialselection.us, History of Reform Efforts: Formal Changes Since Inception, http://www.judicialselection.us/judicial-selection/reform-efforts/ formal-changes-since-inception.cfm?state=(last visited Feb.14,2009).
150. See id.
151. See id.
152. See id.
153. See id.
154. See id.
155. See Hanssen, supra note 8, at 442-43 tbl.l (documenting the dates in which each state adopted nonpartisan elections).
156. The goal is to avoid the problem identified in Barry Friedman, Taking Law Seriously, 4 PERSP. ON POL. 261, 262 (2006) (& quot;One would surely think that if any interdisciplinary project were appropriate, it would be the marriage of legal theory and the positive study of judicial behavior. Yet, reflecting an almost pathological skepticism that law matters, positive scholars of courts and judicial behavior simply fail to take law and legal institutions seriously.& quot;).
157. Richard P. Caldarone et al., Partisan Signals and Democratic Accountability: An Analysis of State Supreme Court Abortion Decisions, 71 J. POL. (forthcoming 2009) analyzes a wider range of abortion-related cases in a regression that does not control for case facts (and utilizes a different dependent variable). More generally, that paper focuses on debates in the political-science literature rather than legal scholarship.
158. See, e.g., City of Helena v. Lewis, 860 P.2d 698, 699 (Mont. 1993) (involving a trespassing charge against Lewis and others for blocking the entranceway to an abortion clinic); State v. Franck, 499 N.W.2d 108, 109 (N.D. 1993) (describing Franck's disobeying of an injunction that forbid certain types of protests within 100 feet of an abortion clinic).
159. See, e.g., Ex parte Anonymous, 808 So. 2d 1025, 1025 (Ala. 2001) (addressing a situation where a minor petitioned the Alabama Supreme Court for a judicial bypass to obtain an abortion without parental consent); In re Jane Doe 1, 566 N.E.2d 1181, 1182 (Ohio 1990) (ruling that the petitioner should not be granted a judicial bypass to receive an abortion without parental consent).
160. See, e.g., Blake v. Cruz, 698 P.2d 315, 316 (Idaho 1984) (dealing with whether the Idaho Supreme Court would recognize a cause of action for wrongful birth with regard to the plaintiff's son, who was born with rubella);
161. Schirmer v. Mt. Auburn Obstetrics & Gynecologic Assocs., Inc., 844 N.E.2d 1160, 1162 (Ohio 2006) (discussing whether Ohio recognizes a special cause of action for wrongful birth, above and beyond regular medical-malpractice charges).
162. See, e.g., Blake v. Cruz, 698 P.2d 315, 316 (Idaho 1984) (addressing a wrongful birth suit against a doctor that failed to test for rubella);
163. Schirmer v. Mt. Auburn Obstetrics & Gynecologic Assocs., Inc., 844 N.E.2d 1160, 1163 (Ohio 2006) (illustrating a case in which the plaintiffs maintained that the physicians & quot;negligently performed and interpreted the diagnostic tests& quot;).
164. See, e.g., State exrel. Atkinson v. Wilson, 332 S.E.2d 807, 807-08 (W. Va. 1984) (addressing whether a person can be charged with murder for the death of another's unborn child).
165. See, e.g., McKee v. County of Ramsey, 316 N.W.2d 555, 556 (Minn. 1982) (dealing with an argument by plaintiffs that they should not be compelled to pay certain taxes if the state funds abortions).
166. See, e.g., People v. Higuera, 625 N.W.2d 444, 447 (Mich. 2001) (dealing with a doctor who was charged with illegally performing a late-term abortion).
167. See, e.g., Souders, supra note 61, at 550 (& quot;Television advertisements that often distort candidates' views in short, thirty-second blurbs have become the weapons of choice in high-stakes state supreme court races.& quot;);
168. see also sources cited supra note 97.
169. While the Supreme Court of the United States does not appoint temporary justices when a regular justice is unavailable, state supreme courts regularly do so. See, e.g., Howard J. Bashman, Avoiding Recusal-Based Tie Votes at the U.S. Supreme Court, LAW.COM, March 4, 2008, http://www.law.com/jsp/article.jsp?id= 1204544938947.
170. The supreme courts of Nevada, New Mexico, and Utah had no cases that fit our criteria during this period, which is why we searched for cases in nineteen states but have data from only sixteen of them.
171. Public-opinion surveys conducted before 1990 used the following question: & quot;Should abortion be legal as it is now, or legal only in such cases as rape, incest, or to save the life of the mother, or should it not be permitted at all?& quot; Survey by CBS News/New York Times, Sept. 17-20, 1989 [USCBSNYT.092889.R15], available at http://www.ropercenter.uconn. edu/data-access/ipoll/ipoll.html. Surveys conducted after 1990 used the question, & quot;Which of these comes closest to your view? 1. Abortion should be generally available to those who want it. Or 2. Abortion should be available but under stricter limits than it is now. Or 3. Abortion should not be permitted?& quot; Survey by CBS News/New York Times, May 31-June 3, 1996 [USCBSNYT.060796. R87], available at http://www.ropercenter.uconn.edu/ data- access/ipoll/ipoll.html. See Caldarone et al., supra note 125, for evidence that the change in question wording does not affect the survey responses.
172. Such pooling is standard because the number of responses per state is not sufficient in each year to comprise a state-level sample. The approach was pioneered in ROBERT S. ERIKSON ET AL., STATEHOUSE DEMOCRACY: PUBLIC OPINION AND POLICY IN THE AMERICAN STATES 29-30 (1993).
173. In order to ensure that the results are not compromised by the fact that the surveys begin in 1985, we have also conducted the analysis without the cases from 1980 to 1984. These results are substantively similar to those presented.
174. See, e.g., Frank B. Cross & Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 YALE L.J. 2155, 2156 (1998); Cass R. Sunstein et al., Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation, 90 VA. L. REV. 301, 302 (2004). Also, considerable attention has been paid to this notion by political scientists. See, e.g., JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED 86-100 (2002) (describing the basic & quot;attitudinal model,& quot; which claims that judges' personal policy preferences affect their decisions).
175. See Adams, supra note 112, at 721-27 (describing the process by which the Republican and Democratic Parties, at both the elite and mass public level, became affiliated with the pro-life and pro-choice positions, respectively).
176. Moreover, in the states with partisan systems, judges are commonly selected through partisan-based nomination procedures such as primaries or conventions, and may therefore have additional incentives to vote the party line. Two of the states with nonpartisan systems-Ohio and Michigan-also have partisan-based nomination procedures despite the fact that the general election is nonpartisan. In Ohio, the justices face partisan primaries, see OHIO REV. CODE ANN. § 3518.08, 3505.03 (2008), and in Michigan, judges are initially nominated via party conventions or a nominating petition. 5feeMICH. Comp. Laws § 392 (2008). Removing these states from the analysis does not alter the key results.
177. The data on judges' partisan affiliation are from Laura Langer, Multiple Actors and Competing Risks: State Supreme Court Justices and the Policymaking (Unmaking) Game of Judicial Review, National Science Foundation CAREER Grant, SES-0092187 (2006), available at http://www.u.arizona.edu/ ~llanger/NSFNatural CourtsData.htm. If the judge was not affiliated with either major party, we eliminated him from the analysis presented. However, we have also conducted the analysis assigning such a judge a 0.5 for the partisanship variable, and received substantively similar results.
178. Notably, the key results hold even if this variable is excluded from the analysis.
179. See, e.g., Gregory A. Huber & Sanford C. Gordon, Accountability and Coercion: Is Justice Blind When It Runs for Office?, 48 AM. J. POL. SCI. 247, 261 (2004) (& quot;We provide evidence that judges become significantly more punitive the closer they are to standing for reelection. In Pennsylvania, for the time period and crimes we analyze, we can attribute more than two thousand years of additional incarceration to this dynamic. This may imply judges sentence too harshly near elections, or too leniently early in their terms.& quot;).
180. For evidence on judges, see Melinda Gann Hall, Justices as Representatives: Elections and Judicial Politics in the American States, 23 AM. POL. Q. 485, 487 (1995). For evidence on elected officials, see Brandice Canes-Wrone & Kenneth W. Shotts, The Conditional Nature of Presidential Responsiveness to Public Opinion, 48 AM. J. POL. SCI. 690, 690 (2004);
181. James H. Kuklinski, Representativeness and Elections: A Policy Analysis, 72 AM. POL. SCI. REV. 165, 166 (1978).
182. Because state supreme-court judges have staggered terms, it is almost always the case that some judge is facing reelection within the next two years on a given court. See, e.g., Elizabeth F. Colombo, The New Southpaws: The Turning of the Nevada Supreme Court's Criminal Decisions, 66 ALB. L. REV. 907, 907 (discussing the staggering of terms on the Nevada Supreme Court); Jown W. Reed, Judicial Selection in Michigan: Time for Change?, 75 MICH. B.J. 902, 902 (1996) (discussing the staggering of terms on the Michigan Supreme Court);
183. Julie F. Siegel, High Court Studies: The Supreme Court of Texas from 1989-1998: Independence Determined by Six-Year Terms, 62 ALB. L. REV. 1649, 1649 (1999) (discussing the staggering of terms on the Supreme Court of Texas). Therefore, it would be nearly impossible for these courts to avoid controversial cases anytime a judge faces reelection in the next two years.
184. In particular, a state leans pro-life if the mean response is higher than the value from half of the respondents leaning pro-choice (response 1) and the other half equally dividing between the pro-life options (responses 2 and 3). Accordingly, a state is coded as leaning pro-life if the mean response to the survey is greater than the cutpoint of 0.5*1+0.25*2+.25*3 = 1.75. Utilizing alternative cutpoints, such as whether at least 50 percent of the respondents offer a pro-life response, does not substantially alter the key results about the effects of nonpartisan elections.
185. See, e.g., Arlene D. Boxerman, The Use of the Necessity Defense by Abortion Clinic Protesters, 81 J. CRIM. L. & CRIMINOLOGY 677, 697-99 (1990) (describing judicial rejection of the necessity defense in abortion trespass cases and arguing antiabortion protests are generally on good ground if they restrict their protests to public spaces); Timothy Zick, Space, Place, and Speech: The Expressive Topography, 74 GEO. WASH. L. REV. 439, 468-70 (2006) (describing the importance of place in abortion clinic trespass claims).
186. See, e.g., Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993) (involving picketing at the home of a doctor who performs abortions).
187. 443 U.S. 622 (1979).
188. Id. at 643-44.
189. Id.
190. See, e.g., Akron Ctr. for Reprod. Health v. Slaby, 854 F.2d 852, 854 (6th Cir. 1988).
191. See, e.g., Elizabeth A. Ackmann, Prenatal Testing Gone Awry: The Birth of a Conflict of Ethics and Liability, 2 IND. HEALTH L. REV. 199, 204 (2005) (& quot;Another prominent fetal tort is wrongful birth, in which parents sue based on the theory they would have aborted the child had they known the child would be born with genetic abnormalities that would seriously affect his/her quality of life.& quot;);
192. James Bopp, Jr. et al., The & quot;Rights& quot; and & quot;Wrongs& quot; of Wrongful Birth and Wrongful Life: A Jurisprudential Analysis of Birth Related Torts, 27 DUO.. L. REV. 461, 461 (1989) (& quot;A wrongful birth action is brought by parents seeking damages for the birth of a 'defective' child. The parents allege that they would have aborted the child if the defendants, health care personnel, had properly advised them of the risks of birth defects.& quot;).
193. See, e.g., Bopp et al., supra note 154, at 485 (& quot;[T]he wrongful birth cause of action . . .creates a financial incentive for physicians to recommend amniocentesis and genetic screening in borderline cases, and in possibly most or all cases for the particular 'cautious' physician. The incentive is simply to avoid liability and, where there may be no liability, to avoid the costs of frivolous litigation.& quot;); Sonia Mateu Suter, The Routinization of Prenatal Testing, 28 AM. J.L. & MED. 233, 251 (2002) (& quot;If a [health-care] provider persuades a patient to undergo testing, she reduces the chance of wrongful birth liability.& quot;).
194. See Horace B. Robertson, Jr., Toward Rational Boundaries of Tort Liability for Injury to the Unborn: Prenatal Injuries, Preconception Injuries and Wrongful Life, 1978 DUKE L.J. 1401, 1418 (& quot;Viability is what makes the fetus a 'person' within most courts' construction of the wrongful death statutes.& quot;);
195. Jonathan Dyer Stanley, Note, Fetal Surgery and Wrongful Death Actions on Behalf of the Unborn: An Argument for a Social Standard, 56 VAND. L. REV. 1523, 1551 (2003) (& quot;Courts have commended viability as a sensible standard in wrongful death law because of the supposed legal significance of the point where the fetus is able to exist separately outside of the womb.& quot;).
196. We define viable fetus as one that is more than six months old, and nonviable fetus as one that is less than six months old. In the data there are no cases of fetuses close to this stage of development.
197. See supra note 147 for how states are classified as leaning pro-life versus pro-choice.
198. ARK. CONST, amend. 80, § 18(A) (going into effect July 1, 2001).
199. For the two other states that switched to nonpartisan elections over this period, we do not have cases from each type of system. All of the Georgia cases were decided when the state had nonpartisan elections, and all of the North Carolina cases were decided when the state had partisan elections.
200. See supra Part IV.C.
201. In particular, the lines are loess (locally weighted smoothed regression) estimators, with the bandwidth set to 1. Shorter bandwidths do not substantially affect the pattern. For a discussion of loess estimators, see William H. Greene, ECONOMETRIC ANALYSIS 457-59 (5th ed. 2002).
202. See supra note 142 for a description of the data on judges' partisan affiliation.
203. In particular, we estimate a probit model for each case / and judge j as follows: Pr( Vote Prolifeij = 1) = %(fio+ fit Opinion Differential:*Nonpartisan System + $2 Opinion Differential!*Partisan System + 03 Nonpartisan System + /k Facts Prolifei + flsRepublican Judge/ + /?« Electoral Proximity/ + 07 Trespass Category! + fis Minors Category, + Wrongful Birth Category! + sji), where 0 is an error term. For an introduction to probit models
204. see PETER KENNEDY, A GUIDE TO ECONOMETRICS 264-68 (5th ed. 2003). The coefficients f& beta; and f& beta; capture the effects of public opinion in a partisan and nonpartisan system, respectively, on judicial decisions. The variable & quot;Nonpartisan System,& quot; which equals 1 if the judge faces nonpartisan elections and 0 if he faces partisan elections, is included separately as a main effect (for which the coefficient is f& beta;) to account for any direct impact that the type of system might have on the likelihood of a pro-life decision.
205. In particular, we simulated the predicted probability of a pro-life decision once at each level of the pro-life opinion differential from -20 percent through 50 percent at 0.1 percent intervals. To estimate the predicted probabilities, we used the CLARIFY software. See Gary King et al., Making the Most of Statistical Analyses: Improving Interpretation and Presentation, 44 AM. J. POL. SCI. 347, 348 (2000).
206. See source cited supra notes 2 & 12.
207. See source cited supra note 13.
208. See sources cited supra note 139.
209. See, e.g., Hall, supra note 145;
210. Huber & Gordon, supra note 144.
211. In order to estimate the effects of individual case types, it is necessary to exclude one dummy variable from the regression. See KENNEDY, supra note 164, at 249. We have chosen to exclude Personhood cases, which is an entirely arbitrary decision. The choice of which category is excluded does not affect the substantive findings of the regression analysis in any way.
212. See, e.g., Alice Clapman, Note, Privacy Rights and Abortion Outing: A Proposal for Using Common-Law Torts to Protect Abortion Patients and Staff, 112 YALE L.J. 1545, 1573 (2003) (noting with respect to abortion-related protests that & quot;courts often assume . . . that most offensive and even harmful speech must be protected so as to avoid chilling other, desirable speech& quot;).
213. 443 U.S. 622 (1979).
214. Id. at 625; 651.
215. Lori K. Mans, Note, Liability for the Death of a Fetus: Fetal Rights or Women's Rights?, 15 U. FLA. J.L. & PUB. POL'Y 295, 306 (2004).
216. Michael T. Murtaugh, Wrongful Birth: The Courts' Dilemma in L& curret;termining a Remedy for a & quot;Blessed Event, & quot; 27 PACE L. REV. 241, 258 (2007) (& quot;When the child is born normal and healthy, the courts have engaged in discussions of the 'blessings' and 'benefits' of parenthood, and have allowed those concepts either to abrogate the plaintiffs claim or reduce an award of damages for rearing. However, if the wrongfully born infant is born with a congenital defect, courts have generally rejected these arguments.& quot;). Others have argued that the federal courts generally defer to state law on these cases. See, e.g., Thomas A. Warnock, Comment, Scientific Advancements: Will Technology Make the Unpopular Wrongful Birth/Life Causes of Action Extinct?, 19 TEMP. ENVTL. L. & TECH. J. 173, 174 (2001) (& quot;[T]he federal courts who presided over these [wrongful-birth and wrongful-life] cases applied state law because 'wrongful birth' and 'wrongful life' are state claims.& quot;).
217. 550 U.S. 124 (2007).
218. Id. at 133.
219. See, e.g., Robert Barnes, High Court Upholds Curb on Abortion: 5-4 Vote Affirms Ban on & quot;Partial-Birth& quot; Procedure, WASH. POST, Apr. 19, 2007, at Al (& quot;[Gonzales] marked an unmistakable shift [in the court].& quot;); Linda Greenhouse, In Reversal of Course, Justices, 5-4, Back Ban on Abortion Method, N.Y. TIMES, Apr. 19, 2007, at Al (& quot;[Gonzales] has broader implications for abortion regulations generally, indicating a change in the court's balancing of the various interests involved in the abortion debate.& quot;). Separately, Nancy Keenan, President of the National Abortion Rights Action League (NARAL) responded to the decision by stating that the Court & quot;has given anti-choice state lawmakers the green light to open the flood gates and launch additional attacks on safe, legal abortion, without any regard for women's health.& quot; Press Release, NARAL, Supreme Court Decision Marks Setback for Women's Health and Privacy (Apr. 18, 2007), available at http://www.prochoiceamerica.org/ ne ws/press-releases/2007/pr04182007 scotus. html.
220. E.g., Clarke D. Forsythe & Stephen B. Presser, Restoring Self- Govemment on Abortion: A Federalism Amendment, 10 TEX. REV. LAW & POL. 301, 304-05 (2006);
221. Michael J. Gerhardt, What's Old Is New Again, 86 B.U. L. REV. 1267, 1273-74 (2006);
222. Peter A. Meyers & Joshua Osborne-Klein, Trading the Privacy Right: Justice Alito's Dangerous Reasoning on Privacy Rights, 5 SEATTLE J. SOC. JUST. 373, 398-401 (2006).
223. 530 U.S. 914 (2000).
224. Id. at 921-22.
225. Id. at 918-19.
226. See id.
227. See sources cited supra note 179.
228. Kirk Johnson, New State Push to Restrict Abortions May Follow Ruling, N.Y. TIMES, Apr. 20, 2007, at A18.