Americans prize “due process of law” in resolving our legal disputes. We expect that when our disputes must be resolved by trial, that our case will be heard, fully and fairly, by an impartial judge.
But a recent United States Supreme Court decision threatens this expected impartiality by opening our courts to unlimited campaign contributions.
As Georgians, we must defend fair and impartial courts from unlimited spending.
As in most states, Georgia’s state court judges must run for election. This differs from the federal system, in which judges are appointed by the president, confirmed by the Senate and serve for life. Supporters of our current system of judicial elections assert that elections keep judges accountable to the people. Yet many also acknowledge that judges should not be subject to the same kinds of fundraising obligations and bare-knuckle politics that sometimes characterize elections for governor or the Legislature.
Until recently, Georgia managed to maintain judicial elections while limiting the corrupting power of broad fundraising. Georgia rules once prevented state judges from soliciting campaign contributions. Although these rules were struck down in 2002, our state has broadly avoided aggressive judicial fundraising. Some of our neighboring states, such as Alabama and North Carolina, have not proven so lucky; these states’ judges sometimes raise millions of dollars from the very parties whose cases they are to hear.
The Supreme Court’s recent decision in “McCutcheon v. Federal Election Commission” makes it easier for interest groups to organize large pools of money by removing the overall cap on how much one individual or campaign committee can contribute in a single election cycle. As with the court’s earlier decision in Citizens United, experts predict that McCutcheon will open the floodgates of money into elections of all kinds, and that this money will inevitably trickle down into judicial elections.
As a law professor at Emory Law School, I study the relationship between campaign contributions and decisions by state court judges. In one of my recent studies, “Justice at Risk,” I analyzed thousands of state supreme court decisions from all 50 states and over 175,000 campaign contributions to justices on those courts. I found that campaign money does affect how cases are decided.
Specifically, judges who receive substantial interest group contributions are much more likely to rule in favor of those groups in court cases. This study adds to the growing body of empirical evidence that demonstrates campaign money correlates with judicial outcomes. This potential influence should trouble judges, policymakers and citizens alike.
Our state has maintained a long-running tradition of judicial impartiality, consistent with our nation’s and state’s understanding of due process of law. The increased money that will surely result from McCutcheon threatens this ideal. We must strive to maintain impartiality in the face of a wealthy few that would purchase decisions from our courts.
Joanna Shepherd Bailey is an associate professor who focuses on law and economics at Emory University School of Law.
