Countering the majoritarian difficulty

Virginia Law Review

Volumn 96, Issue 4, 2010, Pages 719-797

  Frost, Amanda ^a   Lindquist, Stefanie A ^b,c  

^a AMERICAN UNIVERSITY   (United States)

^b UNIVERSITY OF TEXAS   (United States)

^c UNIVERSITY OF TEXAS AT AUSTIN   (United States)

Author keywords

[No Author keywords available]

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EID: 77954379812     PISSN: 00426601     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (370)

1. See American Judicature Society, Methods of Judicial Selection, http//www.judicialselection. us/judidal-selection/methods/selectiorLof judges.cfm (last visited Mar. 15, 2010) (providing a detailed description of each state's method of selecting judges). States employ four primary methods of selecting judges: 1) appointment by a commission or one or both of the state's political branches, either for a life term (usually with a set retirement age) or subject to periodic reappointment; 2) merit-based selection by a commission followed by retention elections in which the incumbent runs unopposed and the voters can only choose to vote "yes" or "no" on whether the incumbent should remain in office (the so-called Missouri plan) ; 3) partisan elections, in which party affiliation is listed on the ballot; 4) and nonpartisan elections, in which judicial candidates' party affiliations are not listed. It may be difficult to classify states precisely, however, because of differences in how these four basic categories of selection operate across the states. Selection methods also often differ across levels of the judiciary within states, which sometimes use one method of selection for trial judges and another for appellate judges. In this Article, references to "elected judges" include all judges who must undergo an election to remain in office, whether that election is a partisan election, non-partisan election, or retention election.
2. Kermit L. Hall, Judicial Independence and the Majoritarian Difficulty, in The Judicial Branch 60, 73 (Kermit L. Hall & Kevin T. McGuire eds., 2005).
3. See, e.g., Erwin Chemerinsky, Restrictions on the Speech of Judicial Candidates are Unconstitutional, 35 Ind. L. Rev. 735, 736 (2002) ("[T]here is no indication that states with such systems for choosing and retaining judges are likely to abandon them.") ;
4. Aman McLeod, If at First You Don't Succeed: A Critical Evaluation of Judicial Selection Reform Efforts, 107 W. Va. L. Rev. 499, 523 (2005) (observing that aside from Virginia in 1869, no state that elects its judges has ever entirely abandoned judicial elections) ;
5. David E. Pozen, The Irony of Judicial Elections, 108 Colum. L. Rev. 265, 270 (2008) ("No matter what their critics might say, judicial elections are unlikely to be abandoned in the foreseeable future.").
6. See, e.g., Lawrence Baum, Judicial Elections and Judicial Independence: The Voter's Perspective, 64 Ohio St. L. J. 13, 41 (2003) ("There is widespread dissatisfaction today with the operation of judicial elections.") ;
7. Erwin Chemerinsky, Evaluating Judicial Candidates, 61 S. Cal. L. Rev. 1985, 1988 (1988) ("I strongly favor the abolition of judicial elections in all states.") ;
8. Charles Gardner Geyh, Why Judicial Elections Stink, 64 Ohio St. L. J. 43, 44 (2003) ;
9. Hall, supra note 2, at 73 ("There is enormous skepticism among the modern professional bar and many court reformers about the wisdom of electing judges.") ;
10. Pozen, supra note 3, at 278 & n. 53 (noting the widespread academic "disdain" for elective judiciaries).
11. Indeed, one expert on judicial elections declared that "more sweat and ink have been spent on getting rid of judicial elections than on any other single subject in the history of American law." Roy A. Schotland, Comment, 61 Law & Contemp. Probs. 149, 150 (1998).
12. Many judges have also criticized the practice. See, e.g., Justice John Paul Stevens, Opening Assembly Address, American Bar Association Annual Meeting, Orlando, Florida, Aug. 3, 1996
13. St. John's J. Legal Comment. 21, 30-31 (1996) (criticizing the practice of electing judges) ;
14. Justice Sandra Day O'Connor, How to Save Our Courts, Parade, Feb. 24, 2008, available at http//www.parade.com/articles/editions/2008/edition-02-24- 2008/Courts-0-Connor (criticizing judicial elections as undermining judicial independence) ;
15. Chief Justice Margaret H. Marshall, President of the Conference of Chief Justices, Remarks to the American Bar Association House of Delegates 5-6 (Feb. 16, 2009) (transcript available at http/I arcnivesJib.state.ma.us/bitstream/ handle/2452/37538/ocn294909900-2009.pdf?sequence=l) (referring to judicial elections as the "single greatest threat to judicial independence"). At least a couple of political scientists, however, have written in favor of judicial elections.
16. See, e.g., Chris W. Bonneau & Melinda Gann Hall, In Defense of Judicial Elections (2009).
17. See supra note 4.
18. See infra notes 35-41 and accompanying text.
19. Several of these issues were on full display in Caperton v. A. T. Massey Coal Co., a case before the United States Supreme Court during the 2008 term, in which the Court held that due process required an elected West Virginia Supreme Court justice to recuse himself from a case involving a company whose Chief Executive Officer ("CEO") had raised millions of dollars to support the justice's election. 129 S. Ct. 2252, 2257, 2262-65 (2009).
20. he majority opinion declared that in light of the " extraordinary" facts of the case-the CEO's role in raising $3 million to aid in the justice's election while the CEO's company was appealing its case to the West Virginia Supreme Court and the newly-elected justice's deciding vote in the company's favor- the public could reasonably doubt the justice's ability to serve as an impartial decision maker in the case.
21. Id. at 2265.
22. Steven P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law, 62 U. Chi. L. Rev. 689, 694 (1995).
23. As evident from its name, the "majoritarian difficulty" is the flipside of the "countermajoritarian difficulty" that has so deeply occupied scholars of the federal courts.
24. See infra notes 16-18 and accompanying text (contrasting the majoritarian and countermajoritarian difficulties).
25. See Chemerinsky, supra note 4, at 1988 ("The paramount function of courts is to protect social minorities and individual rights. But judges cannot be expected to perform this countermajoritarian function if their ability to keep their prestigious, highly sought after positions depends on popular approval of their rulings.") ;
26. Vicki C. Jackson, Packages of Judicial Independence: The Selection and Tenure of Article III Judges, 95 Geo. L. J. 965, 967 (2007) ("Judges who must stand for frequent election or reappointment have more reason to be concerned that making an unpopular decision will harm their livelihood than do judges appointed under Article III.") ;
27. Burt Neuborne, The Myth of Parity, 90 Harv. L. Rev. 1105, 1127-28 (1977) (describing how majoritarian pressures prevent elected state judges from vindicating constitutional rights).
28. For a discussion of the empirical evidence supporting the conclusion that elections affect judicial decision-making, see infra notes 16-18 and accompanying text.
29. Erwin Chemerinsky, Federal Jurisdiction 36 (5th ed. 2007).
30. See, e.g., Erwin Chemerinsky, Parity Reconsidered: Defining a Role for the Federal Judiciary, 36 UCLA L. Rev. 233, 256 (1988) ("[F]ocusing on parity is futile because ultimately the issue of parity is an empirical question for which no empirical measure is possible.").
31. Pozen, supra note 3, at 292 (stating that the majoritarian difficulty "seems inherent to, if not the purpose of, an elective judiciary"). "
32. See supra note 4.
33. Croley, supra note 8, at 781 ("One can always argue that no matter how accountable state judges are, the non-elective federal judiciary is a sufficient ballast for constitutionalism.") ;
34. Michelle T. Friedland, Disqualification or Suppression: Due Process and the Response to Judicial Campaign Speech, 104 Colum. L. Rev. 563, 629 & n. 303 (2004) (questioning the significance of the majoritarian difficulty in light of the fact that elected state court judges are bound by the Supremacy Clause to uphold federal law and are subject to federal court review) ;
35. Barry Friedman, Under the Law of Federal Jurisdiction: Allocating Cases Between Federal and State Courts, 104 Colum. L. Rev. 1211, 1226-35 (2004) (arguing that cases implicating both state and federal interests should be litigated in both court systems simultaneously through mechanisms such as certification, abstention, and collateral review) ;
36. Robert A. Schapiro, Toward a Theory of Interactive Federalism, 91 Iowa L. Rev. 243, 301 (2005) (noting that if one of the two court systems fails to protect rights, the other can intervene to do so).
37. Cf. Helen Hershkoff, State Courts and the "Passive Virtues": Rethinking the Judicial Function, 114 Harv. L. Rev. 1833, 1844-76 (2001) (describing how the judicial practice in some states differs from the federal model in that state courts engage in a range of activities beyond adjudicating "cases" and "controversies").
38. Alexander Bickel coined the phrase "countermajoritarian difficulty." Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 16 (2d ed. 1986).
39. The problem has been thoroughly examined in thousands of books and law review articles. See, e.g., Barry Friedman, The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five, 112 Yale L. J. 153, 155 & n. 5 (2002).
40. See, e.g., Bickel, supra note 16, at 16-23.
41. Croley, supra note 8, at 694.
42. " Stephen Holmes, Precommitments and the Paradox of Democracy, in Constitutionalism and Democracy 195, 197 (Jon Elster & Rune Slagstad eds., 1988).
43. Robert A. Dahl, A Preface to Democratic Theory 34 (1956) ("Running through the whole history of democratic theories is the identification of 'democracy' with political equality, popular sovereignty, and rule by majorities.").
44. See, e.g., Mark Tushnet, Dialogic Judicial Review, 61 Ark. L. Rev. 205, 206 (2008) (describing "the inevitable tension within democratic constitutionalism between its commitment to popular self-government and its commitment to limitations on what popular majorities can do").
45. See, e.g., Bruce A. Ackerman, Neo-Federalism?, in Constitutionalism and Democracy
46. supra note 19, at 153, 168-74 (rejecting a conception of democracy premised on pure majoritarianism) ;
47. Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution 1-38 (1996) (same).
48. Croley, supra note 8, at 705.
49. See, e.g., Bruce A. Ackerman, 1 We the People: Foundations 19-22 (1991) (describing how social movements can effectuate constitutional change) ;
50. Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 8 (2004) ("Both in its origins and for most of our history, American constitutionalism assigned ordinary citizens a central and pivotal role in implementing their Constitution. ") ;
51. Robert A. Dahl, Decision-Making in a Democracy: The Role of the Supreme Court as a National Policy-Maker, 6 J. Pub. L. 279, 285 (1957) (noting that the Supreme Court's decisions are never far out of line with the views of the political branches of government) ;
52. Barry Friedman, Dialogue and Judicial Review, 91 Mich. L. Rev. 577, 586 (1993) (asserting that "courts do not trump majority will, or remain unaccountable to majority sentiment, nearly to the extent usually depicted").
53. Louis Michael Seid́man, Ambivalence and Accountability, 61 S. Cal. L. Rev. 1571, 1571-73 (1988).
54. But see Stephen B. Burbank, What Do We Mean by "Judicial Independence"?, 64 Ohio St. L. J. 323, 324-25 (2003) (arguing that judicial independence and accountability need not be viewed as "at war with each other", but rather as "complementary concepts that can and should be regarded as allies").
55. Bickel, supra note 16, at 17.
56. " See, e.g., John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 11-12, 41 (1980) ;
57. Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo L. Rev. 579, 594 (2005).
58. See infra notes 31-36 for further discussion of the effect of elections on judicial decision-making.
59. See, e.g., Republican Party of Minn. v. White, 536 U. S. 765, 803-04 (2002) (Ginsburg, J., dissenting) (arguing that judges perform a function "fundamentally different" from that of elected officials, because judges must "neutrally apply[] legal principles, and, when necessary, stand[] up to what is generally supreme in a democracy: the popular will") (internal citation and quotation marks omitted) ;
60. Schapiro, supra note 14, at 315 (noting that state court enforcement of state constitutional rights "has at times proved disappointing" and attributing the problem to the "electoral vulnerability" of state judges that "may distort the interpretive process").
61. See, e.g., Chemerinsky, supra note 4, at 1988 ("[T]he entire concept of the rule of law requires that judges decide cases based on their views of the legal merits, not based on what will please voters.").
62. " See, e.g., Matthew J. Streb, Judicial Elections: A Different Standard for the Rulemakers?, in Law and Election Politics: The Rules of the Game 171 (Matthew J. Streb ed., 2005) ;
63. Brian Z. Tamanaha, Law as a Means to an End: Threat to the Rule of Law 185 (2006) ("Prior to the 1970s, judicial elections were sleepy events garnering little attention and involving relatively small sums of money.") ;
64. Pozen, supra note 3, at 266 (stating that until recently "judicial elections have been sleepy, low key affairs") (internal quotation marks omitted).
65. Moreover, public choice theory suggests that well-organized interest groups may have a greater effect on elected officials than diffuse majorities, and thus elected judges might be more attentive to this small subset of the population than to the majority as a whole-still a problem, of course, but not quite the same problem.
66. See infra notes 61-62.
67. See, e.g., Deborah Goldberg, Interest Group Participation in Judicial Elections, in Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections 73, 91 (Matthew J. Streb ed., 2007) (describing the influence of special interest groups on elected judges) ;
68. Ronald K. L. Collins et al., State High Courts, State Constitutions, and Individual Rights Litigation Since 1980: A Judicial Survey, Publius, Summer 1986, at 141, 150-52 (finding a slower expansion of individual rights litigation in states that elect their judiciaries compared to those that appoint their judiciaries) ;
69. Burt Neuborne, The Myth of Parity, 90 Harv. L. Rev. 1105, 1127-28 (1977) (describing how majoritarian pressures prevent elected state judges from vindicating constitutional rights) ;
70. see also id. at 1116 n. 45 (observing that those states that appoint judges and provide them with life tenure have been more "vigorous" protectors of individual rights) ;
71. Joanna M. Shepherd, The Influence of Retention Politics on Judges' Voting, 38 J. Legal Stud. 169, 169 (2009) ("The evidence supports the widespread belief that judges respond to political pressure in an effort to be reelected-") ;
72. Alexander Tabarrok & Eric Helland, Court Politics: The Political Economy of Tort Awards, 42 J. L. & Econ. 157, 186 (1999) (finding that elected judges are more likely than appointed judges to redistribute wealth from out-of-state businesses to in-state plaintiffs) ;
73. Robert F. Utter, State Constitutional Law, The United States Supreme Court, and Democratic Accountability: Is There a Crocodile in the Bathtub?, 64 Wash. L. Rev. 19, 34 (1989) (commenting that elected judges "are dramatically more vulnerable to democratic influences").
74. Baum, supra note 4, at 16-17 ("Changes in campaign practices almost surely have increased the number of judges who face opposition based on the content of their decisions. Whether or not the proportion of judges who are actually defeated has increased, the growth in issue-based campaigns against incumbents probably has increased the proportion who are defeated on the basis of their decisions.") ;
75. Croley, supra note 8, at 734
76. ("[J]udicial elections have become increasingly salient in recent years, during which time the incidence of judicial incumbent electoral defeats has increased, while the electoral victory margins of judicial winners have decreased.") ;
77. Renée Lettow Lerner, From Popular Control to Independence: Reform of the Elected Judiciary in Boss Tweed' New York, 15 Geo. Mason L. Rev. 109, 111 (2007)
78. ("Since the 1980s, judicial races in many parts of the United States have become increasing[ly] politicized-") ;
79. Pozen, supra note 3, at 267-68 ("[W]e are in a new era of judicial elections. Contributions have skyrocketed; interest groups, political parties, and mass media advertising play an increasingly prominent role; incumbents are facing stiffer competition; salience is at an all-time high.") ;
80. id. at 296-300.
81. Chris W. Bonneau, The Dynamics of Campaign Spending in State Supreme Court Elections, in Running for Judge, supra note 34, at 63 (showing that "campaign spending in state supreme court elections has increased steadily over the period 1990-2004") ;
82. Deborah Goldberg, Interest Group Participation in Judicial Elections, in Running for Judge, supra note 34, at 77 (stating that total candidate fundraising in 2000 was sixty-one percent higher than in the previous election cycle) ;
83. James Sample et al., The New Politics of Judicial Elections 2006 (Jesse Rutledge ed., 2007), http://www.gavelgrab.org/wp-content/resources/NewPolitics of Judicial Elections 2006.pdf.
84. In 2000, candidates for state supreme court elections raised over $45 million in fundraising, double the amount raised in 1994. Deborah Goldberg et al., Justice at Stake Campaign, The New Politics of Judicial Elections: How 2000
85. Was a Watershed Year for Big Money, Special Interest Pressure, and TV Advertising in State Supreme Court Campaigns, 7 (2002).
86. Cf. Remarks of Chief Justice Margaret H. Marshall, supra note 4, at 5 ("This trio of developments-special interest money, attack ads, the loosening of ethical strictures on judicial campaign speech-has transformed the nature of judicial elections.").
87. 536 U. S. 765, 788 (2002) ;
88. see Michelle T. Friedland, supra note 14, at 620 (commenting that as a result of the decision in White, "[j]udicial campaigns will more closely resemble campaigns for other offices").
89. See Mike France & Lorraine Woellert, The Battle Over the Courts: How Politics, Ideology, and Special Interests are Compromising the U. S. Justice System, Bus. Wk., Sept. 27, 2004, at 38.
90. Pozen, supra note 3, at 297;
91. see also France & Woellert, supra note 39 (describing how Gordon E. Maag, a candidate for the Illinois State Supreme Court, held campaign events at which he "declared] that he's both pro-gun and anti-abortion").
92. See Lawrence Baum & David Klein, Voter Responses to High-Visibility Judicial Campaigns, in Running for Judge, supra note 34, at 140, 143.
93. See, e.g., Deborah Goldberg, Interest Group Participation in Judicial Elections, in Running for Judge, supra note 34, at 73, 75 ("Sitting judges facing an imminent election, whether a contested election or a retention election, know that every decision is potentially fodder for the opposition. When well-heeled or well-organized interest groups can seize on isolated opinions-even well-reasoned decisions that have been joined by a majority of other judges on the court-as the basis for attack ads in the next campaign, it takes extraordinary integrity and real courage for a judge facing reelection to support a ruling that plainly will be unpopular.") ;
94. Adam Liptak, Case May Alter Judge Elections Across Country, N. Y. Times, Feb. 15, 2009, at A 29 (describing how the CEO of the defendant in Caperton v. Massey helped to defeat an incumbent justice by "instructing] his aides to find a [judicial] decision that would enrage the public", and then using that decision in campaign ads against the incumbent).
95. Baum, supra note 4, at 13 ("There is a widespread perception of growth in the frequency of strong challenges to incumbent judges that are based on the substance of judges' decisions.") ;
96. see also id. at 13 n. l (citing newspaper articles describing the change in dynamics in judicial elections) ;
97. id. at 39 ("Has judicial independence declined? For state supreme court justices, almost certainly it has-[J]ustices face a greater risk of paying an electoral price for the positions they take in cases.") ;
98. Paul R. Brace & Melinda Gann Hall, Is Judicial Federalism Essential to Democracy? State Courts in the Federal System, in The Judicial Branch
99. supra note 2, at 174, 196 (Kermit L. Hall & Kevin T. McGuire eds., 2005) (observing that competition in judicial elections is increasing: "In 1990, only one out of every three justices (37.5 percent) in nonpartisan states... face[d] challengers, but by 2000 two of three (68.0 percent) were challenged for reelection. ") ;
100. see also Adam Jadhav, Judicial Candidates Promise Civil Campaign, St. Louis Post-Dispatch, Nov. 21, 2007, at B7 (describing how judicial elections in Illinois became "referenda on tort reform" after the Supreme Court's decision in Republican Party of Minnesota v. White freed judicial candidates to make statements about their positions on that issue).
101. John H. Culver & John T. Wold, Rose Bird and the Politics of Judicial Accountability in California, 70 Judicature 81, 81, 87 (1986).
102. " Traciel V. Reid, The Politicization of Judicial Retention Elections: The Defeat of Justices Lanphier and White, Research on Judicial Selection 1999, 83 Judicature 68, 70 (2000).
103. See Carol Morello, W. Va. Supreme Court Justice Defeated in Rancorous Contest, Wash. Post, Nov. 4, 2004, at A15
104. (describing the "controversial ad" campaign that "criticized the justice for joining a 3 to 2 majority extending probation for Tony D. Arbaugh Jr., who had been convicted of sexually molesting a half brother") ;
105. see also Liptak, supra note 42, tat A 29 (describing the same ad campaign).
106. 71 P.3d 1269, 1276 (Nev. 2003) (en banc), reh'g denied, 76 P.3d 22 (Nev. 2003).
107. See, e.g., Editorial, Nancy Becker Faces Voters, Las Vegas Review-Journal, Sept. 22, 2006, at 8B, available at http//www.reviewjournal.com/ lvrj-home/2006/Sep-22-Fri-2006/opinion/9799698.html;
108. see also Editorial, Becker Has the Right Stuff, Las Vegas Sun, Oct. 22, 2006, at A4 (stating that Becker's opponent's campaign "rests on a single issue-the Supreme Court's 2003 decision in Guinn v. Legislature", and noting that the "Far Right" sought "revenge" for that decision in the form of Becker's defeat in the election).
109. " Political scientist Melinda Gann Hall has found that between 1980 and 1995, slightly less than ninety-two percent of all sitting state supreme court justices up for reelection were successful. Melinda Gann Hall, State Supreme Courts in American Democracy: Probing the Myths of Judicial Reform, 95 Am. Pol. Sci. Rev. 315, 319 (2001). It appears that incumbent lower court judges do equally well.
110. See Baum, supra note 4, at 27. It is worth noting that this data was gathered over a decade ago, when judicial elections had only just begun to become more competitive.
111. Baum, supra note 4, at 27;
112. see also Hall, supra note 49, at 319 ("The fact of the matter... is that supreme court justices face competition that is, by two of three measures, equivalent if not higher to that for the U. S. House.").
113. See Croley, supra note 8, at 730 (noting that "judges who are candidates in lowsalience elections are likely to be influenced by political pressures generated by highsalience elections") ;
114. cf. Jackson, supra note 9, at 992 ("It is reasonable to assume that most judges, like most people, do not want to lose their jobs and will, other things being equal, take steps to avoid doing so.").
115. s Tabarrok & Helland, supra note 34, at 163.
116. The authors also found that elected judges issued higher tort awards against instate defendants than did appointed judges, though the discrepancy was not as great. The authors noted that elected judges receive most of their campaign contributions from trial lawyers, and that all trial lawyers, whether defense side or plaintiff side, benefit financially from higher awards in tort cases. Thus, the authors of the study speculated that elected judges were pressured by these constituents to issue higher tort awards generally, as well as to issue particularly high awards against out-of-state defendants.
117. Id. at 160-61 & n. 11.
118. See Gregory A. Huber & Sanford C. Gordon, Accountability and Coercion: Is Justice Blind When it Runs for Office?, 48 Am. J. Pol. Sci. 247, 258 (2004) (finding that "all judges, even the most punitive, increase their sentences as reelection nears").
119. Richard W. Brooks & Steven Raphael, Life Terms or Death Sentences: The Uneasy Relationship Between Judicial Elections and Capital Punishment, 92 J. Crim. L. & Criminology 609, 610 (2002) (finding that "criminal defendants [convicted of murder] were approximately fifteen percent more likely to be sentenced to death when the sentence was issued during the judge's election year") ;
120. see also Paul Brace & Melinda Gann Hall, Studying Courts Comparatively: The View from the American States, 48 Pol. Res. Q. 5, 24 (1995) ;
121. 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, 784-91 (1995).
122. See, e.g., Stefanie A. Lindquist & Kevin Pybas, State Supreme Court Decisions to Overrule Precedent, 1965-1996, 20 Just. Sys. J. 17, 34 (1998) (finding that appointed, life-tenured justices on the New Jersey Supreme Court overruled decisions more often than did justices in states with elective judiciaries, leading the study's authors to conclude that the New Jersey justices "may feel more insulated from the political process and thus more comfortable adopting an activist agenda").
123. Larry T. Aspin & William K. Hall, Retention Elections and Judicial Behavior, 77 Judicature 306, 312 (1994).
124. Id. at 315.
125. Paul Reidinger, The Politics of Judging, A. B. A. J., Apr. 1, 1987, at 52, 58;
126. see also Republican Party of Minn. v. White, 1536 U. S. 765, 789 (2002) (O'Connor, J., concurring) ("Elected judges cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their reelection prospects.").
127. Baum, supra note 4, at 15 (giving examples of judges who were not reappointed by state governors who disagreed with their decisions on the bench).
128. See Owen Fiss, The Right Degree of Independence, in The Law as It Could Be 62-65 (2003)
129. (describing sources of influence on the federal judiciary) ; Stephen B. Burbank, supra note 5, 28-29 2003) describing the various mechanisms by which Congress retains power over the federal courts) ;
130. Friedman, supra note 24, at 590-614 (asserting that the Supreme Court is responsive to public opinion despite the insulation of its members from political pressure) ;
131. Jackson, supra note 9, at 967 (describing f accountability mechanisms", including internal mechanisms (such as appeals and disciplinarrnal mechanisms (such as political branch control of jurisdiction and funding)) ;
132. id. at 984 ("[I]f lower court positions came to be viewed more as 'stepping stones' rather than 'capstones, ' the temptation at the margin for self-interested decision-making might increase, especially in an atmosphere in which confirmation battles focus more openly on ideology.") ;
133. Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 Va. L. Rev. 1, 6 (1996).
134. The actions of United States District Judge Harold Baer are often cited as an example of how even appointed judges respond to political pressure. Judge Baer had suppressed evidence in a drug case after concluding that the fact that defendant ran away when he saw the police did not constitute probable cause for the subsequent search. An intense political outcry followed, with many politicians calling for his resignation or impeachment. Judge Baer eventually reversed his ruling and held that the evidence was admissible.
135. John M. Goshko & Nancy Reckler, Controversial Drug Ruling is Reversed, Wash. Post., Apr. 2, 1996, at Al;
136. Don Van Natta, Jr., Under Pressure, Federal Judge Reverses Decision in Drug Case, N. Y. Times, Apr. 2, 1996, at Al.
137. See Hershkoff, supra note 15, at 1887 (describing state courts as "beholden to popular approval" and thus more "politically dependent than their Article III peers" because many state judges are elected, and almost all lack life tenure) ;
138. see also Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review, 112 Harv. L. Rev. 1131, 1159 (1999) (noting judicial independence does not take an "either/or form", but rather "exists along a continuum").
139. As Alexander Hamilton declaredv in The Federalist No. 78, "If the power of making [judicial appointments] was committed... to the people... there would be too great a disposition to consult popularity to justify a reliance that nothing would be consulted but the Constitution and the laws." The Federalist No. 78, at 439 (Alexander Hamilton) (Clinton Rossiter ed., 1999). Hamilton also believed that "permanency in office", was superior to "[periodical appointments" for similar reasons: That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence.
140. Id. See also Jackson, supra note 9, at 987 ("There is little question that these tenure and salary protections promote Article III judges' independence, from both the political branches and popular opinion. ").
141. See, e.g., Kermit L. Hall, The Judiciary on Trial: State Constitutional Reform and the Rise of the Elected Judiciary, 1846-1860, 45 The Historian 337, 341 (2007).
142. See, e.g., Pozen, supra note 3, at 278 n. 56 ("[F]or electoral considerations to influence judicial decision-making in ways many would find objectionable, the retention of power need not be the first instinct of judges; it just needs to skew the decisional calculus enough to change certain outcomes.").
143. Jackson, supra note 9, at 969 ("[I]t seems plausible to assume, at least for present purposes, that selection and tenure rules play some role in supporting commitments to the independence of judging and the rule of law.").
144. " See, e.g., Printz v. United States, 521 U. S. 898, 932 (1997) ;
145. New York v. United States, 505 U. S. 144, 175 (1992).
146. For example, in New York v. United States, the Supreme Court invalidated a federal statute that sought to "commandeer" the states by requiring that they either regulate radioactive waste disposal or take title to the waste, asserting that forcing states to regulate was beyond Congress's Commerce Clause power. The Court distinguished Congress's power to require state courts to apply federal law, explaining that "[f]ederal statutes enforceable in state courts do, in a sense, direct state judges to enforce them, but this sort of federal 'direction' of state judges is mandated by the text of the Supremacy Clause. No comparable constitutional provision authorizes Congress to command state legislatures to legislate."
147. Id. at 178-79.
148. " The Federalist No. 82, at 462 (Alexander Hamilton) (Clinton Rossiter ed., 1999).
149. U. S. Const, art. III, § 1, cl. 1 ("The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.").
150. These statistics were compiled from Harvard Law Review's annual review of Supreme Court statistics from 2004 to 2009. The Statistics, 123 Harv. L. Rev. 382, 391 (2009) ;
151. The Statistics, 122 Harv. L. Rev. 516, 525 (2008) ;
152. The Statistics, 121 Harv. L. Rev. 436, 445 (2007) ;
153. The Statistics, 120 Harv. L. Rev. 372, 381 (2006) ;
154. The Statistics, 119 Harv. L. Rev. 415, 427 (2005) ;
155. The Statistics, 118 Harv. L. Rev. 497, 506 (2004).
156. See Michael E. Solimine, Supreme Court Monitoring of State Courts in the Twenty-First Century, 35 Ind. L. Rev. 335, 352 (2002) (assuming an average docket of 150 for this period).
157. Alexander Hamilton, writing in The Federalist No. 82 as Publius, asserted that "an appeal would certainly lie" from the state courts "to the Supreme Court of the United States" in cases in which the state and federal courts have concurrent jurisdiction, or "else the judiciary
158. The Supreme Court emphatically affirmed this understanding in Martin v. Hunter's Lessee, 14 U. S. (1 Wheat.) 304, 342 (1816).
159. Martin v. Hunter's Lessee, 14 U. S., at 337 (stating that "appellate jurisdiction is given by the constitution to the supreme court in all cases where it has not original jurisdiction", rendering the Supreme Court "capable of embracing every case enumerated in the constitution") ;
160. see also Laura S. Fitzgerald, Suspecting the States: Supreme Court Review of State-Court State-Law Judgments, 101 Mich. L. Rev. 80, 153-55 & n. 303 (2002).
161. Pub. L. No. 104-132, § 8104, 110
162. Stat. 1214, 1218-19 (1996) (codified as amended at 28 U. S. C. § 2254 (b), (d) - (e), (i) (2006)).
163. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U. S. 280, 283 (2005).
164. Id. at 284.
165. See infra notes 144-147 (discussing state courts' views on this question).
166. " The Federalist No. 82, at 462 (Alexander Hamilton) (Clinton Rossiter ed., 1999).
167. Id. at 463.
168. Id.
169. See 28 U. S. C. § 1331 (2006).
170. 28 U. S. C. § 1332 (a) (2006).
171. See, e.g., Tafflin v. Levitt, 493 U. S. 455, 458-59 (1990).
172. 211 U. S. 149, 151-54 (1908).
173. See Osborn v. Bank of the U. S., 22 U. S. (9 Wheat.) 738, 818-23 (1824).
174. 7 U. S. (3 Cranch) 267, 267-68 (1806).
175. See, e.g., State Farm Fire & Cas. Co. v. Tashire, 386 U. S. 523, 530-31 (1967).
176. "Pub. L. No. 109-2, §4 (a) (2), 119 Stat. 4, 9 (codified as amended at 28 U. S. C. §1332 (d) (2) (2006)).
177. " The Eleventh Amendment, however, does limit the federal courts' ability to order state officials to conform their conduct to state law, and thus such cases are best heard in the first instance in state courts.
178. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U. S. 89, 106 (1984).
179. " See, e.g., Anthony G. Amsterdam, Criminal Prosecutions Affecting Federally Guaranteed Civil Rights: Federal Removal and Habeas Corpus Jurisdiction to Abort State Court Trial, 113 U. Pa. L. Rev. 793, 797-99 (1965) (describing southern courts' unwillingness to uphold federal claims of right) ;
180. Michael J. Klarman, Bush v. Gore Through the Lens of Constitutional History, 89 Cal. L. Rev. 1721, 1738 (2001) (asserting that the Supreme Court's reversal of the state court decision on state law in NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 (1958), was influenced by its knowledge that southern courts were "engaged in a project of massive resistance" to the civil rights movement).
181. Richard H. Fallon, Jr. et al., Hart and Wechsler's The Federal Courts and The Federal System 459-60 (6th ed. 2009) ("In the more than fifty years since the First Edition was published, the expansion of federal legislation and administrative regulation noted in this discussion has accelerated; today one finds many more instances in which federal enactments supply both right and remedy in, or wholly occupy, a particular field. This same period has witnessed a broad extension of federal laws (constitutional and statutory) that protect individual rights and provide remedies for violations thereof. Thus, at present federal law appears to be more primary than interstitial in numerous areas.").
182. See Friedland, supra note 14, at 629-30 (noting that "the rights we believe are most important are protected by federal law").
183. See, e.g., 42 U. S. C. § 1981-83 (2006).
184. U. S. Const, amend. XIV, § 1.
185. Indeed, any litigant who could assert a federal claim would likely file her case in federal court, as is discussed in Section III. C.
186. " See, e.g., Romer v. Evans, 517 U. S. 620, 631-35 (1996) (holding that an amendment to the Colorado Constitution prohibiting protection of homosexuals from discrimination violated the Equal Protection Clause).
187. " See infra notes 161-163;
188. cf. FTC v. Cement Inst., 333 U. S. 683, 702-03 (1948) ("[M]ost matters relating to judicial disqualification [do] not rise to a constitutional level.").
189. " See supra note 71. 3 Furthermore, state courts may seek to avoid federal judicial review and reversal by grounding their decision on factual questions, rather than by issuing a ruling on a question of federal law. The more fact-bound the decision, the less likely the Supreme Court will review it.
190. 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, 1113-20 (2006) (describing media influence on public perceptions of crime).
191. See Baum, supra note 4, at 34 (noting that crime is a "highly salient issue" in judicial elections) ;
192. Croley, supra note 8, at 740-41 nn. 151-52;
193. Hans A. Linde, Elective Judges: Some Comparative Comments, 61 S. Cal. L. Rev. 1995, 2000-01 (1988) (noting that judicial campaigns often focus on claims regarding judges' stance on crime) ;
194. Pozen, supra note 3, at 287 ("Given the political unpopularity of criminal defendants as a group and the unique salience of crime in the public perception of judicial behavior, incumbent judges may be most vulnerable when their opponents are able to characterize them as soft on crime.") ;
195. see, e.g., O'Connor, supra note 4, at 4-5 (describing how opponents of Bill Cunningham's 2006 campaign for the Kentucky Supreme Court ran "misleading" ads accusing him of releasing six rapists on parole).
196. Indeed, interest groups hoping to oust judges whom they perceive as unfriendly to business interest will sometimes target those judges for their criminal rulings, knowing they can influence public opinion more easily by claiming that the judge is "pro-criminal" than "anti-business. "
197. See, e.g., Amanda Frost, Only a Partial Win, Nat'l L. J., June 15, 2009, at 43;
198. Adam Liptak, Case May Alter the Election of Judges, N. Y. Times, Feb. 15, 2009, at 29 (describing how the CEO of the defendant in Caperton v. Massey helped to defeat an incumbent justice by "instruct[ing] his aides to find a [judicial] decision that would enrage the public" and then using that decision in campaign ads against the incumbent).
199. Huber & Gordon, supra note 54, at 255.
200. Cf. Paul R. Brace & Melinda Gann Hall, The Interplay of Preferences, Case Facts, Context, and Rules in the Politics of Judicial Choice, 59 J. Pol. 1206, 1219-21 (1997) (describing how short terms in office decrease differences between political parties).
201. United States v. Bayless, 921 F. Supp. 211, 212 (S. D. N. Y. 1996) ;
202. see also Don Van Natta, Jr., Under Pressure, Federal Judge Reverses Decision in Drug Case, N. Y. Times, Apr. 2, 1996, at A1.
203. See supra Section I. B.
204. See, e.g., Brown v. Allen, 344 U. S. 443, 458 (1953).
205. See, e.g., Wainwright v. Sykes, 433 U. S. 72, 87-89 (1977) ;
206. see also Fallon et al., supra note 92, at 1213-14, 1222-23 (describing the expansion of habeas corpus review of state convictions in Brown v. Allen, followed by the restrictions imposed during the Burger Court and codified in AEDPA).
207. Pub. L. No. 104-132, § 104, 110 Stat. 1214, 1218-19
208. (codified as amended at 28 U. S. C. § 2254 (e) (2006)).
209. Joseph L. Hoffman & Nancy J. King, Rethinking the Federal Role in State Criminal Justice, 84 N. Y. U. L. Rev. 791, 818-33 (2009).
210. Robert M. Cover & T. Alexander Aleinikoff, Dialectical Federalism: Habeas Corpus and the Court, 86 Yale L. J. 1035, 1046 (1977) ("Redundancy could also spark a reduction of constitutional errors on the part of the states. If state courts knew that errors would be corrected by a federal court requiring a retrial, they might be more solicitous toward claims brought before them.").
211. But see Pozen, supra note 3, at 287 ("Defendants who... bring habeas corpus claims will also generally find little succor in the federal courts, in light of the Antiterrorism and Effective Death Penalty Act's stringent standard for reversal.").
212. Lawrence Baum, Lower-Court Response to Supreme Court Decisions: Reconsidering a Negative Picture, 3 Just. Sys. J. 208, 213 (1978) (discussing the "embarrass[ment]" of reversal and stating that the "significance of reversal as a sanction makes it a meaningful incentive for adherence to Supreme Court doctrine, because deviation from the Court's policies increases the risk of reversal").
213. In the past, the Supreme Court reviewed more state court cases each term than it does today, and there were fewer state court decisions that qualified for review. See Solimine, supra note 72, at 352.
214. Baum, supra note 113, at 213 (noting that "when a court is several steps removed from the Supreme Court in the judicial hierarchy", as are state courts, reversal is a less effective sanction) ;
215. cf. Sara C. Benesh & Wendy L. Martinek, tate Supreme Court Decision-Making in Confession Cases, 23 Just. Sys. J. 109, 125-26 (2002) (reporting that the authors' data on state court decision-making show "no concern over review/reversal" by the Supreme Court, which they speculate is due to the fact that it "so rarely occurs") ;
216. Arthur D. Hellman, The Shrunken Docket of the Rehnquist Court, 1996 Sup. Ct. Rev. 403, 436-37 (noting that as a result of the Supreme Court's shrunken docket, "[l]ower-court judges will no longer feel the spirit of goodwill and cooperation that comes from participation in a shared enterprise").
217. Baum, supra note 113, at 213 ("[A] judge with strong reasons to resist the Court's leadership... probably will be willing to accept occasional reversals as the price of resistance ")
218. Glassroth v. Moore, 335 F.3d 1282, 1284-85 (11th Cir. 2003).
219. Jeffrey Gettleman, Alabama Panel Ousts Judge Over Ten Commandments, 'N. Y. Times, Nov. 14, 2003, at A16.
220. Monica Davey, Alabama Governor Defeats Former Justice in Primary, N. Y. Times, June 7, 2006, at A20.
221. See supra note 91.
222. See Neuborne, supra note 9, at 1119 ("We are not faced today with widespread state judicial refusal to enforce clear federal rights. When the mandates of the Federal Constitution are clear, most state judges respect the supremacy clause and enforce them.").
223. As discussed in Part V, were this dynamic to develop, the federal courts should take these majoritarian impulses into account when selecting state court cases for review.
224. See Michigan v. Long, 463 U. S. 1032, 1040-41 (1983) (establishing that the Supreme Court may review any state court decisions that do not make clear whether they rely on state or federal law, even when such decisions go beyond federal constitutional protections and thus would be unreviewable if clearly grounded solely upon state law).
225. Edward Hartnett, Why Is the Supreme Court of the United States Protecting State Judges from Popular Democracy?, 75 Tex. L. Rev. 907, 980 (1997) (noting that denials of certiorari are often described by the press as "decision[s] to 'let stand' the judgment sought to be reviewed").
226. See, e.g., Fallon et al., supra note 92, at 479 (noting that "many post-[Michigan v. Long] state court decisions fail to indicate clearly whether they rest on state or federal grounds") ;
227. James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich. L. Rev. 761, 778-800 (1992) (studying 1208 state court decisions from seven states and finding that state courts repeatedly failed to specify whether the holding rested on state or federal constitutional grounds) ;
228. Felicia A. Rosenfeld, Note, Fulfilling the Goals of Michigan v. Long: The State Court Reaction, 56 Fordham L. Rev. 1041, 1042, 1047 (1988) (studying over five hundred state court decisions post-Michigan v. Long and finding that "most state courts fail to indicate clearly the basis for their constitutional rulings").
229. On occasion, states have explicitly acknowledged deciding cases so as to invite Supreme Court review. For example, in an 1844 case, the Pennsylvania Supreme Court stated that "in cases of difficulty or doubt", it would "put [its] judgment in such a shape as would make it the subject of a writ of error" to the Supreme Court. Chadwick v. Moore, 8 Watts & Serg. 49, 53 (Pa. 1844).
230. 463 U. S. at 1040-41.
231. See supra note 125.
232. Hartnett, supra note 124, at 983;
233. see also Toby J. Heytens, Doctrine Formulation and Distrust, 83 Notre Dame L. Rev. 2045, 2080 (2008) (speculating that the Supreme Court began reviewing state court damage awards because of its "increasing conviction that juries had gotten out of control, and that at least some state courts were unwilling to rein them in... [possibly] because the political environment in various states made state court judges reluctant to take action in the absence of cover from the Supreme Court"). Interestingly, the New Hampshire Supreme Court, whose judges are appointed for life, is an exception. That court's decisions regularly declare that citations to federal law are merely for "guidance" in interpreting state law, thereby insulating its decisions from direct review in the Supreme Court as much as possible. As Professor Hartnett notes, New Hampshire's willingness to take the full political heat for its decisions may be explained by the fact that its judges are appointed, not elected, and thus do not need the political protection that comes from the potential for Supreme Court review.
234. Hartnett, supra note 124, at 983-84.
235. Some scholars contend that the doctrine prohibiting Supreme Court review of state court decisions clearly resting on an independent and adequate state law ground "permits state courts to hide behind federal law", hindering "accountability." Richard A. Matasar & Gregory S. Bruch, Procedural Common Law, Federal Jurisdictional Policy, and Abandonment of the Adequate and Independent State Grounds Doctrine, 86 Colum. L. Rev. 1291, 1364-65 (1986) ;
236. see also George Deukmejian & Clifford K. Thompson, Jr., All Sail and No Anchor-Judicial Review Under the California Constitution, 6 Hastings Const. L. Q. 975, 996-97 (1979) (criticizing the California Supreme Court for avoiding Supreme Court review by resting its decisions on both state and federal constitutional law). But in fact it appears that the opposite phenomenon has occurred: state courts regularly rest their decisions on federal law because the availability of Supreme Court review diminishes their accountability for the results.
237. People v. Long, 359 N. W.2d 194, 198 (Mich. 1984).
238. Solimine, supra note 72, at 343-44.
239. Baum & Klein, supra note 41, at 150.
240. See U. S. Const, art. VI, cl. 2;
241. see also Paul M. Bator, Withdrawing Jurisdiction from Federal Courts, 7 Harv. J. L. & Pub. Pol'y 31, 33 (1984) ;
242. Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 Stan. L. Rev. 817, 868 (1994) ;
243. Martin H. Redish, Congressional Power to Regulate Supreme Court Appellate Jurisdiction Under the Exceptions Clause: An Internal and External Examination, 27 Vill. L. Rev. 900, 925 (1982). A few scholars contend that lower courts need not adhere to Supreme Court precedent in cases in which the Supreme Court has been stripped of jurisdiction to review those decisions.
244. See Akhil Reed Amar, Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B. U. L. Rev. 205, 258 n. 170 (1985) ;
245. Leonard G. Ratner, Majoritarian Constraints on Judicial Review: Congressional Control of Supreme Court Jurisdiction, 27 Vill. L. Rev. 929, 936-37 (1982).
246. Cf. Baum, supra note 113, at 212 ("Judges are persons who have undergone a legal socialization process in which the authority of higher courts for their subordinates is an accepted value, and that socialization process inevitably has a significant effect on judges' perspectives.").
247. Caminker, supra note 132, at 826-27.
248. U. S. Const. art VI, cl. 2.
249. See Stone v. Powell, 428 U. S. 465, 493 n. 35 (1976) ("Despite... the unsympathetic attitude to federal constitutional claims of some state judges in years past, we are unwilling to assume that there now exists a general lack of appropriate sensitivity to constitutional rights in the trial and appellate courts of the several States.").
250. Solimine, supra note 72, at 358 (noting that possibility of Supreme Court review of any given state court decision is "remote", and speculating that the "norm of following Supreme Court precedent is the principal compelling force" behind state court adherence to that precedent).
251. Benesh & Martinek, supra note 115, at 122-24.
252. Id. at 114-16, 122-23.
253. Id. at 125.
254. J. Woodford Howard, Jr., Courts of Appeals in the Federal Judicial System 164 (1981) (reporting that out of thirty-five federal appeals court judges interviewed, thirty-two said that they found precedent "influential" when it is "clear and relevant").
255. In a study of 697 tort diversity cases, researchers found that judges followed state law despite the fact that there was no possibility for either state or U. S. Supreme Court review. Donald R. Songer et al., Do Judges Follow the Law When There Is No Fear of Reversal?, 24 Just. Sys. J. 137, 141-42, 150 (2003).
256. Cf. Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review, 112 Harv. L. Rev. 1131, 1169-70 (1999) (criticizing state courts for applying federal standards of review to state constitutional questions on the ground that many of the institutional limitations on federal courts do not apply to states).
257. See Lockhart v. Fretwell, 506 U. S. 364, 376 (1993) (Thomas, J., concurring) (explaining that Arkansas trial court was not bound by Eighth Circuit precedent) ;
258. Steffel v. Thompson, 415 U. S. 452, 482 (1974) (Rehnquist, J., concurring) ("State authorities may choose to be guided by the judgment of a lower federal court, but they are not compelled to follow the decision by threat of contempt or other penalties.").
259. Colin E. Wrabley, Applying Federal Court of Appeals' Precedent: Contrasting Approaches to Applying Court of Appeals' Federal Law Holdings and Erie State Law Predictions, 3 Seton Hall Circuit Rev. 1, 17 n. 77 (2006) (compiling state court cases describing their views regarding the precedential effect of lower federal court rulings on questions of federal law).
260. See Wrabley, supra note 145, at 17-23 & n. 77;
261. see also, e.g., Etcheverry v. Trig-Ag Serv., Inc., 993 P.2d 366, 368 (Cal. 2000) ;
262. Red Maple Props. v. Zoning Comm'n of Brookfield, 610 A.2d 1238, 1242 n. 7 (Conn. 1992).
263. See, e.g., King v. Grand Casinos of Miss., Inc., 697 So. 2d 439, 440 (Miss. 1997) ("This Court's task in the present case is simplified greatly by the fact that there is a Fifth Circuit Court of Appeals decision on point, which this Court considers to be controlling with regard to the present issue of federal law.") ;
264. Desmarais v. Joy Mfg. Co., 538 A.2d 1218, 1220 (N. H. 1988) ("[I]n exercising our jurisdiction with respect to what is essentially a federal question, we are guided and bound by federal statutes and decisions of the federal courts interpreting those statutes.") ;
265. see also Wrabley, supra note 145, at 19-20 (citing state court decisions in which state courts declare they are bound by the precedent set by lower federal courts).
266. Kuchenmeister v. L. A. & Salt Lake R. R. Co., 172 P. 725, 727 (Utah 1918).
267. See, e.g., Szewczyk v. Dep't of Soc. Servs., 881 A.2d 259, 267 n. 12 (Conn. 2005) ("Any disagreement by us with the Second Circuit's statutory analysis must yield to the more compelling objective of uniform interpretation of federal laws-") ;
268. Borowiec v. Gateway 2000, Inc., 808 N. E.2d 957, 970 (Ill. 2004) ("[Decisions of the Federal courts interpreting a Federal Act... are controlling upon Illinois courts, in order that the act be given uniform application. ") (internal quotation marks and citation omitted) ;
269. Dewey v. R. J. Reynolds Tobacco Co., 577 A.2d 1239, 1244 (N. J. 1990) (stating that lower federal courts' opinions do not bind state courts but should be accorded "due respect" to promote uniformity).
270. Littlefield v. Maine Dep't of Human Servs., 480 A.2d 731, 737 (Me. 1984) ("[I]n the interests of existing harmonious federal-state relationships, it is a wise policy that a state court of last resort accept, so far as reasonably possible, a decision of its federal circuit court on such a federal question. ") ;
271. see also Investment Co. of Sw. v. Reese, 875 P.2d 1086, 1090 (N. M. 1994) (stating that it is "guided by the unanimity of opinion among the federal courts").
272. See Gardner, supra note 125, at 795-97
273. (discussing People v. Dunn, 564 N. E.2d 1054 (N. Y. 1990)).
274. William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977).
275. 463 U. S. 1032, 1040-41 (1983).
276. See Gardner, supra note 125, at 785-89 (describing cases in which state courts have failed to articulate clearly whether their decisions rest on federal or state law).
277. See Solimine, supra note 72, at 338 ("[S]ystematic studies demonstrate that most state courts, when presented with the opportunity, have chosen not to depart from federal precedents when interpreting the rights-granting provisions of state constitutions.") - Despite the fact that state constitutions are, in theory, entirely separate from the U. S. Constitution, state courts regularly issue decisions either following federal precedent without mentioning state constitutional law, or stating that they "refuse to give a[] broader interpretation" to the provisions of the state constitution than federal courts have provided for similar provisions of the U. S. Constitution.
278. See Gardner, supra note 125, at 792
279. (quoting R. G. Moore Bldg. Corp. v. Comm. for the Repeal of Ordinance R (C) -88-13, 391 S. E.2d 587, 591 (Va. 1990)) ;
280. see also James N. G. Cauthen, Expanding Rights Under State Constitutions: A Quantitative Appraisal, 63 Alb. L. Rev. 1183, 1194-201 (2000) (examining 627 state supreme court opinions from twenty-five states and concluding that state courts were unwilling to deviate from federal courts' construction of the U. S. Constitution in most areas).
281. 28 U. S. C. § 1367 (a) (2006).
282. In an article challenging the presumption of parity between state and federal courts, Professor Burt Neuborne argued that federal courts offer more hospitable fora for constitutional rights litigation than state courts, in part because federal judges are insulated from majoritarian pressures. Neuborne, supra note 9, at 1120-21. Neuborne addressed the issue from the perspective of litigator as well as scholar; he had served as a staff counsel for the New York Civil Liberties Union and then as an Assistant Legal Director to the American Civil Liberties Union, and he continued to litigate constitutional rights cases even after he joined the faculty of the New York University School of Law.
283. Id. at 1105. He explained that as "a civil liberties lawyer for the past ten years, I have pursued a litigation strategy premised on... [the] assumption [that]... persons advancing federal constitutional claims against local officials will fare better, as a rule, in a federal, rather than a state, trial court."
284. Id. at 1115-16.
285. Victor E. Flango, Attorneys' Perspectives on Choice of Forum in Diversity Cases, 25 Akron L. Rev. 41, 52-54 (1991). For further discussion of Flango's article
286. see infra Section IV. C.
287. Neal Miller, An Empirical Study of Forum Choices in Removal Cases Under Diversity and Federal Question Jurisdiction, 41 Am. U. L. Rev. 369, 375 (1992) ;
288. see also Kristin Bumiller, Choice of Forum in Diversity Cases: Analysis of a Survey and Implications for Reform, 15 Law & Soc'y Rev. 749, 759-62 (1981) ("The bias influencing attorneys' decisions... is apparently neither regional bias nor particular hostility due to 'state' residence, but fear of favoritism to local interests.").
289. Of course, for every litigant who seeks out a federal forum, there is an opposing party who would rather appear before an elected state judge. Under the current statutory framework, however, federal jurisdiction is the default whenever one of the two parties prefers it, unless federal jurisdiction is premised on diversity of citizenship and the case is filed in the defendant's home state.
290. See 28 U. S. C. § 1441 (b). The party who prefers to litigate in state court could try to block access to a federal forum through a number of methods-adding a nondiverse party, contesting the amount in controversy, seeking to have a federal question case remanded on the ground that state law predominates, or encouraging the federal court to abstain from deciding a question of state law. In general, however, federal courts will end up hearing cases over which they share jurisdiction with state courts when at least one party prefers the federal forum, since that is the result intended by the jurisdictional statutes.
291. It is worth noting, however, that even when a litigant successfully shoehorns his case into federal court, the effects of majoritarian pressures might follow him into that forum. Federal judges must apply state law as construed by the highest court of the state, and thus if the state courts have already pronounced on the issue then the federal court is bound by that interpretation. If the legal question has never been addressed by the state's high court, federal judges attempt to predict how that court would decide the issue. Comm'r v. Estate of Bosch, 387 U. S. 456, 465 (1967). If the state supreme court has a history of narrowly interpreting state constitutional and statutory provisions protecting individual and minority rights, the federal court may interpret the provision of state law before it in the same spirit, thereby perpetuating the majoritarian difficulty. A federal judge might even abstain from resolving a novel and important state law question, and instead seek the state court's input on that question through certification to the state's high court.
292. See, e.g., Arizonans for Official English v. Arizona, 520 U. S. 43, 76-80 (1997) ;
293. La. Power & Light Co. v. City of Thibodaux, 360 U. S. 25, 27-29 (1959). The very worst of the majoritarian impulses, however, will not follow litigants into federal court. If the state supreme court varies its interpretation of state law depending on the popularity of the litigants before it, federal courts will not engage in the same biased decision-making.
294. Cf. Jonathan Remy Nash, The Uneasy Case for Transjurisdictional Adjudication, 94 Va. L. Rev. 1869, 1900 (2008) ("To the extent that state courts are biased against out-of-state residents, state and federal courts do not, and should not, decide state law claims identically."). The bottom line is that if elected state court judges are viewed as hostile to "countermajoritarian" cases, litigants in these cases will proceed in federal court more often than they would in states with appointed judges.
295. See, e.g., BMW of N. Am. v. Gore, 517 U. S. 559, 568 (1996).
296. See, e.g., In re Murchison, 349 U. S. 133, 136 (1955) ("A fair trial in a fair tribunal is a basic requirement of due process.").
297. Friedland, supra note 14, at 577-604 (noting that the Due Process Clause only requires judicial disqualification under narrow circumstances).
298. Republican Party of Minn. v. White, 536 U. S. 765, 782-83 (2001) (stating that the Due Process Clause has "coexisted with the election of judges ever since it was adopted", and thus cannot be read to bar judicial elections). Some legal academics have suggested that elective judiciaries are at odds with due process.
299. See Martin H. Redish & Lawrence C. Marshall, Adjudicatory Independence and the Values of Procedural Due Process, 95 Yale L. J. 455, 498 (1986) ("[I]n cases involving the assertion of a liberty or property interest in which the state is a party, the use of non-tenured state judges seems to be a clear violation of procedural due process.").
300. See, e.g., Petition for Writ of Certiorari, Avery v. State Farm Mut. Auto. Ins. Co., No. 05-842 (U. S. Dec. 27, 2005)
301. cert, denied, 547 U. S. 1003 (2006).
302. See, e.g., Pub. Citizen, Inc. v. Bomer, 274 F.3d 212 (5th Or. 2001).
303. 129 S. Ct. 2252, 2265 (2009).
304. See supra Section I. B.
305. See, e.g., David Muttart, The Empirical Gap in Jurisprudence (2007).
306. http://scdb.wustl.edu/data.php (last visited Mar. 15, 2010). To construct the data analysis in this section, we selected cases using the following criteria: ANALU= 0 (case citation) ; and DEC-TYPE = 1, 2, 5, 6, and 7 (all decision types except memorandum cases and decrees). To construct the reversal variable, we coded a reversal = 1 if the variable DIS = 0, 2, 3, 4, 5, 6, or 7.
307. See also Solimine, supra note 72, at 354 & n. 93.
308. State Politics & Policy Quarterly: Data Resource/The Practical Researcher, http://academic.udayton.edu/SPPQ-TPR/tpr-data-sets.html (last visited Feb. 2, 2010) (click on "State Dataset" to download Excel spreadsheet). Because states often vary their selection methods across levels of the judiciary, we also coded each state's trial court selection system according to the same typology. Some states have changed their method of judicial selection over time, and our data reflect those changes.
309. For the year 2004, we relied on data provided by the American Judicature Society, http://www.judicialselection. us/judicial-selection/methods/selection- ofJudges.cfm (last visited Feb. 23, 2010), and categorized the state supreme courts as follows: (1) partisanelected states: Alabama, Illinois, Louisiana, New Mexico, Pennsylvania, Texas, West Virginia; (2) nonpartisan-elected states: Arkansas, Georgia, Idaho, Kentucky, Michigan, Minnesota, Mississippi, Montana, Nevada, North Carolina, North Dakota, Ohio, Oregon, Washington, Wisconsin; (3) merit-selected states: Alaska, Arizona, Colorado, Connecticut, Delaware, Florida, Hawaii, Indiana, Iowa, Kansas, Maryland, Missouri, Nebraska, New York, Oklahoma, Rhode Island, South Dakota, Tennes see, Utah, Vermont, Wyoming; (4) appointed states: California, Maine, Massachusetts, New Hampshire, New Jersey, South Carolina, Virginia. We categorized Massachusetts and New Hampshire as appointed states because of the governors' discretion in the selection process. These data are on file with the authors.
310. For purposes of coding retention methods, we again relied on data provided by the American Judicature Society, http://www.judicialselection. us/judiciaL-selection/methods/selection-ofjudges.cfm (last visited Feb. 23, 2010). For the year 2004, we categorized the states as follows: (1) partisan election: Alabama, Louisiana, Texas, West Virginia; (2) nonpartisan election: Arkansas, Georgia, Idaho, Kentucky, Michigan, Minnesota, Mississippi, Montana, Nevada, North Carolina, North Dakota, Ohio, Oregon, Washington, Wisconsin; (3) retention election: Alaska, Arizona, California, Colorado, Florida, Illinois, Indiana, Iowa, Kansas, Maryland, Missouri, Nebraska, New Mexico, Oklahoma, Pennsylvania, South Dakota, Tennessee, Utah, Wyoming; (4) reappointment or life tenure: Connecticut, Delaware, Hawaii, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, South Carolina, Vermont, Virginia. These methods have changed over time in some states, with some, for example, shifting from partisan to nonpartisan elections over time. Our data account for those temporal changes.
311. We tested whether any significant relationship existed between a state's trial court selection system and reversal by the Supreme Court, particularly when the lower court selection system differed from that of the state supreme court and when the case was appealed directly from the lower court. These tests revealed no significant relationships between lower court selection method and Supreme Court reversals.
312. We coded the conflict variable based on the CERT variable in the Supreme Court Database (CERT = 1, 2, 3, 4, 5).
313. The appeal variable was coded based on the JUR variable in the Supreme Court Database (JUR = 2, 6, 7).
314. Ideally, we would also control for ideological effects on the Supreme Court's decision to reverse, such as by incorporating the distance between the median justice on the Supreme Court and the median justice on the state supreme court. At this time, however, we do not have a measure of judicial ideology that is comparable across the state and federal courts.
315. A "dummy variable" reflects the presence or absence of a particular condition, in this case, the form of selection method. Where multiple dummy variables reflect mutually exclusive conditions, a regression model must omit one dummy variable as a reference category. All other dummy variables then evaluate any statistically significant differences in the dependent variable for the included dummy variable compared to the reference category. In our model of
316. Peverill Squire, Measuring Professionalization of U. S. State Courts of Last Resort, 8 St. Pol. & Pol'y Q. 223 (2008) (creating a court professionalism variable that incorporates information about judges' salaries, their staffs (clerks), and their ability to control their own dockets).
317. Id. at 229-30 (noting that these findings correlate with older measures of state court professionalism that were up to thirty years old at the time of his study).
318. Victor E. Flango, State Just. Inst., Habeas Corpus in State and Federal Courts 14 (1994) ;
319. John Scalia, U. S. Dep't of Just., Prisoner Petitions Filed in U. S. District Courts, 2000, with Trends 1980-2000, Bureau of Justice Statistics Special Report 1-2 (2002).
320. A study of the likelihood of success would be hampered by the fact that only a tiny percentage of habeas petitions are granted relief, especially in noncapital cases. See Nancy J. King, Fred L. Cheesman II, & Brian J. Ostrom, Final Technical Report: Habeas Litigation in U. S. District Courts 52 (2007) (finding that only.29% of habeas petitions were granted relief in sample of noncapital cases).
321. Because habeas petitions are as likely to reveal error in the state trial court as to reveal shortcomings in the state appellate process, we used separate models to assess the impact of judicial selection in the state supreme court and trial courts. The results in the trial court models were substantially similar to the results for the supreme court models; for that reason, we report only the supreme court models here.
322. A disparity in the number of prisoners sentenced to death in particular might skew the figures, since these prisoners are the most likely to file habeas petitions.
323. Nancy J. King & Suzanna Sherry, Habeas Corpus and State Sentencing Reform: A Story of Unintended Consequences, 58 Duke L. J. 1, 19 (2008).
324. Flango, supra note 158, at 63.
325. Id. at 64. Similarly, Dickie Scruggs, a well-known plaintiff's lawyer, explained that he and other plaintiffs' attorneys seek to file cases in what he referred to as a "magic jurisdiction", which he defined as a jurisdiction "where the judiciary is elected with verdict money" and where "trial lawyers have established relationships with the judges that are elected." Scruggs explained, "it's almost impossible to get a fair trial if you're a defendant in some of these places." Jim Copland, Op-Ed., The Tort Tax, Wall St. J., June 11, 2003, at A16.
326. These data are on file with the authors and with Interuniversity Consortium for Political and Social Research at the University of Michigan (www.icpsr.umich.edu).
327. Moreover, there appears to be no meaningful correlation between court professionalism and state selection method; for example, appointed and partisan-elected courts have very similar average professionalism scores. As Squire notes: "The way state courts are organized and the manner in which their judges gain the bench... are distinct from the professionalization" reflected in his measurement. Squire, supra note 180, at 234-35. As an additional control for court structure, we included a variable measuring whether each court system had an intermediate appellate court; this variable was not significant in any model.
328. For habeas cases in particular, evaluating the success of actions would be extremely difficult because of the small number of such claims that are ultimately successful in federal court.
329. See King et al., supra note 183, at 52.
330. See supra note 4.
331. Class Action Fairness Act of 2005, Pub. L. No 109-2, 119 Stat. 4 (2005) (codified as amended in scattered sections of 28 U. S. C.).
332. Id. at 6.
333. S. Rep. No. 109-14, at 6 (2005) ;
334. see also id. at 11-12
335. (quoting Davis v. Cannon Chevrolet-Olds, Inc., 182 F.3d 792, 797 (11th Cir. 1999) (asserting that the out-of-state defendant is facing "a state court system [prone to] producing] gigantic awards against out-of-state- corporate defendants")).
336. One of the primary objections to the Class Action Fairness Act was that it impinged on state sovereignty.
337. Id. at 93-94 (stating the minority view that the Class Action Fairness Act is "an unacceptable infringement upon state sovereignty").
338. See David L. Shapiro, Jurisdiction and Discretion, 60 N. Y. U. L. Rev. 543, 545 (1985) ("[T]he existence of this discretion is much more pervasive than is generally realized, and... it has ancient and honorable roots at common law as well as in equity.").
339. Id. at 574 ("[T]he courts are functionally better adapted to engage in the necessary fine tuning [of jurisdiction] than is the legislature.").
340. See supra Part II.
341. Indeed, the scope of federal jurisdiction under Article III is in part a response to the weaknesses the Founders identified in state judicial systems; if state courts had been fully trusted to administer the law, there would be no need for diversity jurisdiction.
342. See, e.g., Michael G. Collins, Judicial Independence and the Scope of Article III-A View from The Federalist, 38 U. Rich. L. Rev. 675, 678 (2004) ("For Hamilton, an important function of the federal courts was to make up for the separation of powers provisions that were lacking in some of the states' judiciaries, at least for certain categories of cases in which the risk of appointing-power deference was thought to present a national concern. ") ;
343. cf. Sandra Day O'Connor, The Majesty of the Law: Reflections of a Supreme Court Justice 142 (2003) ("[T]he health of the entire legal system-both state and federal-depends on a strong state judiciary.").
344. See 28 U. S. C. § 1257 (2006).
345. See Martin v. Hunter's Lessee, 14 U. S. (1 Wheat.) 304 (1816) ;
346. see also Fitzgerald, supra note 74, at 86-87 (concluding that the Supreme Court's willingness to reverse the state court's interpretation of state law in Martin v. Hunter's Lessee rests "on the intuition that - given the obvious need to enforce federal law's supremacy - there simply must be some federal judicial mechanism for catching state courts that disingenuously manipulate antecedent state law to thwart federal interests and then shield their misconduct behind that superficially 'adequate' state ground").
347. See NAACP v. Alabama ex rel. Flowers, 377 U. S. 288, 294-302 (1964) ;
348. NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 457-58 (1958).
349. See generally Fallon et al., supra note 92, at 505-18.
350. See Bush v. Gore, 531 U. S. 98, 139-41 (2000) (Ginsburg, J., dissenting) (asserting that "historical context[]" of "Southern resistance to the civil rights movement" explain the "rare" cases in which the Court rejected state court interpretation of state law) ;
351. Klarman, supra note 91, at 1738. The Supreme Court reviewed more cases originating from the South than other parts of the country during the civil rights era.
352. See Lee Epstein et al., The Supreme Court Compendium 727-29 (4th ed. 2007).
353. Cf. Boumediene v. Bush, 128 S. Ct. 2229, 2268 (2008) (stating that the rigor of habeas review should be correlated to the quality of the lower court's proceedings) ;
354. Fitzgerald, supra note 74, at 89 (arguing that the Supreme Court should only be allowed to reverse state court decisions of state law antecedent to federal questions when "it can identify and substantiate some concrete indication that the state court has deliberately manipulated state law to thwart federal law and then evade Supreme Court review").
355. Sup. Ct. R.10.
356. Id.
357. Solimine, supra note 72, at 352.
358. See supra note 71.
359. Republican Party of Minn. v. White, 536 U. S. 765, 782-83 (2002) (reaffirming that selecting judges through election is compatible with due process).
360. 28 U. S. C. § 1367 (c) (2006).
361. For a general discussion of abstention doctrines, see Fallon et al., supra note 92, at 1057-69.
362. Although abstention is a judicially created jurisdictional device, 28 U. S. C. § 1367 (c) now provides that federal courts may choose not to exercise concurrent jurisdiction over a related state law claim in a federal question case if it "raises a novel or complex issue of state law." The relationship between abstention doctrines and Section 1367 is not clear, but some scholars have argued that Section 1367 displaces abstention.
363. See Robert Schapiro, Polyphonic Federalism: State Constitutions in the Federal Courts, 87 Cal. L. Rev. 1409, 1421-22 & n. 52 (1999).
364. R. R. Comm'n of Tex. v. Pullman Co., 312 U. S. 496, 498-500 (1941).
365. 28 U. S. C. § 2244 (d) (2006).
366. Id. § 2254 (e) (2) (2006).
367. Id. § 2254 (d) (1) (2006).
368. 128 S. Ct. 2229, 2268 (2008) (stating that "the necessary scope of habeas review in part depends upon the rigor of any earlier proceedings... ").
369. See supra notes 53-54.
370. See generally Hershkoff, supra note 15.