President Obama’s well-received inaugural speech hit upon solid themes of equality before the law: ‘… a free market only thrives when there are rules to ensure competition and fair play.’ But the hard-fought gains toward ‘EQUAL JUSTICE UNDER LAW,’ the ideal engraved over the entrance to the Supreme Court building, is imperilled. Federal courts can do mischief – decisions by the conservative Supreme Court majority and the United States Court of Appeals for the District of Columbia Circuit build corporate insulation against class-action and private lawsuits, and whittle away at regulatory reforms. But the peril may be greatest where the legal rubber meets the road for most Americans: the state courts.
While the Supreme Court grabs the media’s spotlight, including speculation on political fallout, it handles hundreds of cases each year. Other Federal courts up the tally, but state courts still handle 95 per cent of the country’s litigation. These courts are where aggrieved consumers who’ve been defrauded by financial institutions seek protection, terribly injured workers seek more than meagre workers compensation, consumers seek some parity in conflicts with corporations like insurance companies that renege on obligations, people whose property or health is impacted by polluters seek redress and those harmed by medical or pharmaceutical negligence seek compensation. State courts are where the little guy seeking justice runs his daunting legal gauntlet against the well heeled.
But the Supreme Court, in its role as final arbiter of the Constitution, can rock the state courts. The Citizens United case, in which Justice Anthony Kennedy wrote ‘independent expenditures do not lead to, or create the appearance of, quid pro quo corruption’, welcomed limitless money, including that riding stealth vehicles. Citizens United received great attention during Presidential and congressional elections. Less noted is its role as an accelerant of alarming trends in judicial elections, both at the state supreme court level and lower courts.
According to the Center for American Progress (CAP), six states that have seen the most cash in judicial elections – Alabama, Texas, Ohio, Pennsylvania, Illinois and Michigan – have supreme courts dominated by pro-corporate judges. In 403 cases from 2000 to 2010 in which individuals sued corporations, those judges ruled for corporations 71 per cent of the time.
United front to control courts
The seamless web of influence includes interplay with state legislatures. Brendan Fischer, counsel at the Center for Media and Democracy, observes that in 2010, the first election after Citizens United, wealthy donors helped Republicans obtain new majorities in state legislatures across the country, and helped far-right governors into office. In return, they adopted much of the agenda of the American Legislative Exchange Council (ALEC), supported by many of the same donors. As laws implementing the ALEC agenda are passed, the gatekeepers against legislative excess are state courts. For example, judges have struck down voter-ID laws as violating state constitutions.
On its website, one can glimpse some ALEC goals, such as state legislatures ‘prohibiting courts from creating new claims (for lawsuits) on their own’. Another is to maintain ‘state sovereignty over environmental protection’, stopping Environmental Protection Agency (EPA) ‘overreach’ in its air and water rules.
Beyond voter laws, state courts are also players in the hyperactive arena of gerrymandering state legislative and US congressional districts. Voter demographics and priorities are changing, diminishing Republican Party attraction for voters.
Now schemes are being hatched in swing states to alter the award of state electoral votes in Presidential contests. The system already essentially disenfranchises voters in solid blue or red states, but these schemes would further thwart popular intent. Such mischief requires controlling courts as well as legislatures.
Justice for sale
William Blake, a doctoral student at the University of Texas, studies the impacts of elections on state supreme courts. He observes that as job security decreases, as in supreme court races that are partisan, justices become both more attuned to public opinion and more polarised on partisan grounds. Blake sees little to refute the findings of Chris Bonneau and Damon Cann, of the political science departments of the University of Pittsburgh and Utah State, respectively. Comparing the 2005 decisions of non-partisan supreme court justices of Nevada with the partisan supreme court justices of Michigan and Texas, Bonneau and Cann didn’t detect quid pro quo exchanges between contributions and decisions in Nevada, but did in Michigan and Texas. Contemplating the chicken or the egg, they concluded contributions drive judicial votes, not the other way around.
But Blake notes that, quid pro quo or not, ‘powerful interests are able to stack state supreme courts with judges who sincerely share their interests.’ He points to a 2001 survey of 2,400 state judges by Justice at Stake that found over a third of state supreme court justices believe campaign contributions influenced judicial decisions; and to a 2007 Justice at Stake poll of business leaders, with 79 per cent believing campaign contributions affect decisions.
A 2011 poll by this group shows 83 per cent of the public believes contributions influence decisions. It’s not hard to imagine a spiral effect from the public’s overwhelming lack of faith in a fair shake from judges. People with legitimate grievances will avoid the financial costs of a court casino.
Money continues to wash away prior spending levels. In 1990, state supreme court candidates raised around $3m total. In 2012, TV ad spending alone reached nearly $30m across 51,000 ads. Studies of state high court elections by university and reform groups, including the Brennan Center for Justice and Justice at Stake, demonstrate the increasing amounts of money coming from non-candidate groups. Forty per cent comes from a handful of national groups and political parties. Such groups fund three-quarters of attack ads. Typically, these ads wildly distort a judge’s rulings or a candidate’s background. The approximate parity of prior elections between the largest groups on the left and the right goes away as financing by business and specific interest groups dominates.
Crippling funding cuts
Increased campaign funding runs contrary to trends of reduced funding for state courts, raising filing fees, cutting staff and salaries and diverting resources from civil trials. New York and California both have huge reductions in funding. California’s Chief Justice Tani Cantil-Sakauye predicts this will be ‘devastating and crippling’ for her state’s ability to dispense justice. Dismissed part-time New York judges now work as volunteers to keep justice in motion.
None of this bodes well for the little guy fighting large companies or banks. Iowa now operates with a smaller workforce than in 1987, but handles double the number of cases. Now aggrieved litigants worry about judicial motivations of financial expediency, and curious rulings that curb prospects for a fair day in court. Add to that the prospect of judges chilled by worries of becoming targets if not thought adequately friendly to business, and their desire for contributions in future contests. Small wonder confidence in the courts is plummeting.
A Center for American Progress (CAP) report by Billy Corriher, updated to consider the 2012 state supreme court races, underscores special interest money swamping campaigns at the supreme court level. An increasing number of races log spending in the millions.
Consider 2012 re-election of North Carolina Supreme Court Justice Paul Newby. According to the CAP study, Newby benefited from more than $2.5m of independent spending. This pushes a state public financing programme that had once been a model for curbing money in judicial races towards irrelevance. As in many elections, the Koch brothers were big players through their SuperPac, Americans for Prosperity, as was the state Chamber of Commerce. In 2009, Newby ruled against tobacco farmers in a dispute with tobacco companies. North Carolina tobacco companies that benefited provided hundreds of thousands of dollars towards Newby’s re-election.
Tobacco’s largess to Newby raises serious doubts as to how well big money and the ideal of justice mix, but consider an upcoming case involving a recent redistricting map. Funnelled through an independent group created to support him, Newby received over a million dollars from the Republican State Leadership Committee, which was keenly involved in the Republican-controlled state legislature’s drafting of the map. A case claiming the map disenfranchises minority voters is before the State court. Despite North Carolina ethics rules, which say that judges should not hear cases where their ‘impartiality might reasonably be questioned’, Newby will hear the redistricting case.
Michigan’s state supreme court is also causing raised eyebrows. Two conservative justices, Stephen Markman and Brian Zahra, received $400,000 of ads paid for by the Michigan Association of Realtors after the justices joined a 2011 opinion easing the path for mortgage companies to foreclose on homeowners. The state Republican Party spent $4.5m on ads for the two, with no disclosure of the sources that contributed that money. On the Democratic side, the state party spent $5m from undisclosed sources on ads supporting three candidates.
It’s difficult to be surprised by much out of the Texas legal system, where judges actually campaign with the promise of upholding more death sentences. The politicisation of criminal law and executing defendants for votes is not a worry in Texas, it’s a done deal.
The ‘hang ‘em high’ reputation enjoyed by much of the Texas judiciary distracts from the flagrant corporate tilt of conservative Republicans who comprise the Texas Supreme Court. According to CAP, Justice Don Willett was easily re-elected, backed by large sums from energy companies and their law firms. In 2007, after oil companies failed to sway the state legislature to protect them from lawsuits by workers, Willett and his colleagues obliged by declaring contract employees such as oil-rig workers cannot sue employers for on-the-job injuries. A year later, in a lawsuit over hydraulic ‘fracking’, Willett ruled against energy company liability for policy reasons, stating common law must accommodate ‘cutting-edge technologies able to extract untold reserves from unconventional fields.’
Independent expenditures are not at all limited to local players. In 2012 Justice Josiah Coleman won a seat on Mississippi’s Supreme Court with a million in independent spending, half of it from the Law Enforcement Alliance of America, which CAP notes has been associated with the NRA and US Chamber of Commerce.
What drives such involvement? One motive is erecting judicial barriers to lawyers seeking theories to get around the Protection of Lawful Commerce in Arms Act, the National Rifle Association-backed liability shield for the gun industry passed by Congress in 2005. State supreme courts have been battlegrounds in past attempts to establish liability, such as variations on negligence. Other industries, including energy, financial and insurance, also seek to undermine their liability.
No quid pro quo endgame in sight
James Nelson, who recently retired from the Montana Supreme Court after 19 years, points to Republican Party of Minnesota vs White, which challenged Minnesota’s prohibition on candidates seeking election from discussing issues that might come before them. ‘The US Supreme Court ruled 5–4 that, though candidates couldn’t promise how they’d vote, they could announce their positions on various issues’, says Nelson. ‘Most state ethics rules then (2002) prohibited that. Now they can say what they’re for or against. That doesn’t have to be a promise for people to figure out how a judge will vote.
Nelson, originally appointed by a Republican governor who chaired George W Bush’s 2004 campaign, is horrified by where the politicisation of the courts is heading. ‘The more parties get directly involved in judicial selection, the more they put people on the bench who are loyal to the party platform – the law be damned.’ Beyond attempts to change the way judges are selected and retained by allowing more political levers, Nelson believes ‘court de-form’ efforts will be made to skew courts with qualification requirements – such as prosecutorial or district judge experience – that move in an ideological direction. Other efforts across the country include creating wacky grounds to impeach judges.
Nelson sees elections becoming so expensive that only the rich can compete – limiting the pool to wealthy business-types or those with similar backing. ‘Politicizing the courts impacts a lawyer’s willingness to be a judge,’ says Nelson. ‘Trying to follow money can be like looking at a Cayman bank account, layer upon layer. Backers don’t like disclosure. I once thought the judiciary was sacrosanct, it isn’t now. Academia won’t be sacrosanct in a few years, nothing is sacrosanct now. This is about the corrupting, corrosive, distortive influence of big money on the courts.’
Someone might mention this to Justice Kennedy.
Skip Kaltenheuser is a freelance journalist and writer, he can be contacted at firstname.lastname@example.org