"Electing State Court Judges: Harmonizing Democracy with Judicial Review in Pursuing Balanced State Government and Legitimacy"
AuthorLopez, Victor S
AdvisorMarsh, Shawn C.
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Traditional democratic political theorists promote the idea that Supreme Court exercises of judicial review create a counter-majoritarian difficulty, theoretically threatening the foundation of American democracy. Nevertheless, Alexander M. Bickel and other writers, while accepting this premise, seek to reconcile the judicial review power with democratic principles. This thesis rejects the existence of a difficulty. It proposes a historically-based approach for studying democratic theory which considers the elective reality among state judiciaries, and then including these judges’ decision making in theoretical discussions. The fact that state court judges are subject to popular vote earns them a substantial degree of democratic legitimacy because they are closer to people than appointed federal counterparts. They more frequently adjudicate common issues affecting peoples’ everyday lives, and they far outnumber U.S. Supreme Court Justices. These predominantly elected judges also interact with the public when they periodically step into the political arena to engage in campaign activities (i.e., election, re-election, or retention).The pervasive nature of the state judicial role and judge elections acquaint the populace with who these judges are and what they do in ways that are unimaginable for the few and remote Supreme Court appointees. As a result, the thesis questions theorists’ proclivity to analyze the counter-majoritarian issue by considering only the Supreme Court’s potential impact on the public sentiment. The Supreme Court lens, it will be argued, is too narrow and unrepresentative of the many and complex state court decisions that result in social control and regularly impact the public mind. This thesis remedies the omission of state court decisions from the analysis. As a part of this investigation, the thesis reviews the nineteenth century transformation of the state judicial office from a legislatively-appointed position to one that became subject to popular vote. During the post-Jacksonian era of democratization, state constitution makers committed to remake state governments by rescuing their political institutions from the claws of the ill-fated experiment of legislatively dominant state governments. Recurrent economic depression, poverty, and instances of government corruption early in the century, led voters to demand fundamental reform. Leading into the 1850s, reformers accepted the important truth that the dominant-legislative model lacked needed checks and balances against public abuse. They slowly recognized that a balanced tripartite system was essential for effective governance. Judiciaries needed to be strengthened if judges were going to assist in securing roughly balanced state government. Abandoning appointments and embracing judicial review and elections led to needed separation and independence of judiciaries from adjoining branches. These reforms also empowered judges to oversee and maintain adjoining branches within newly defined constitutional spending and lawmaking limits. This also bolstered the ability of judges to protect individual rights against government intrusion. Newly empowered judiciaries thus promoted governmental equilibrium against legislatures and executives whose powers were also more clearly defined. Understanding these reforms holds a key to recognizing the taming of formerly dominant legislatures. Considering this combination of changes also reveals how apparently divergent elements (i.e., elections and review power) may be reasonably credited with saving state governments from ruinous corruption and promoting democratic legitimacy.The proposed state-centric analytic model requires theorists to reconsider prior approaches to democratic political theory, including the federal Supreme Court view. The refocus on state court decision making and elections permits more precise consideration of crucial questions. For example, it is important to see, and document, the extent to which American courts exercise consequential judicial review, and to appreciate whether the public actually sees such exercises as problematic, as the Supreme Court view asserts. This approach also helps to illuminate how judges’ participation in campaigns affects public views of legitimacy. The proposed approach offers a richer evidence-base (i.e., state court exercises of the power) on which to base assertions about whether judicial review (and elections)—rather than being a deviant force—actually harmonizes democracy with the American system for the fair administration of justice.