The Politicization of Our Courts

The Politicization of Our Courts Restoring Confidence in State Supreme Courts Center for American Institutions Arizona State University Commissioners Michael Bailey, Alexandra Snyder, Andrew Gould, Steve Twist Published September 2025

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Table of Contents Executive Introduction

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Why Confidence in Our Courts Matters

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The Selection and Retention of State Justices

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Guided Appointment Systems

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How Distrust of the U.S. Supreme Court Bled into State Judiciaries

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Trust in the State Courts

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What Voters Know

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How Voters Learn About Their Courts

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Campaign Advertising and Public Miseducation

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The Paradox of Voters’ Beliefs on Democratic Elections

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Judiciary Elections: Monied Democracy in Action?

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Money in Retention Races

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How State Races Became Nationalized

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Conclusion: Saving Democracy

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Data, Methods, Commissioner Biographies

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Executive Introduction

An Imperative Restoring Trust in State Supreme Courts Public trust in our federal and state courts continues to erode at a frightening pace.

Increasingly the general public views the courts as highly politicized and stepping into areas beyond their jurisdiction. This is especially the case with federal district courts, but trust in state courts continues to decline as well.

Public confidence in all American institutions remains low, even though the majority of Americans take great pride in our nation. The Center for American Institutions wanted to see if public distrust in our institutions extended to state supreme courts. To gauge public sentiment, we undertook an extensive national survey asking the public about their knowledge and views of their state supreme courts. In our survey, we took a deeper examination of six states with various systems for selecting their justices, whether through elections or guided selection. This survey was comprehensive and the first detailed survey since President Trump’s reelection to the presidency in 2024.

Our findings were disturbing in many respects. First, nearly a majority of those surveyed, likely voters, have little or no confidence in their state supreme courts. This sentiment found expression in all states no matter how justices were selected. Likely voters in states electing their judges actually have slightly less confidence in their state judiciaries.

Party affiliation—Republican, Democrat, or Independent—did affect court sentiment.

Race, gender, and age did not affect meaningful differences in attitudes toward the court.

The paradox is that likely voters want their supreme court justices to be elected by the voters, but they do not like the money involved in these political campaigns. This concern for political campaigning should not be cavalierly dismissed. In 2025, this was even the case in Wisconsin, where two candidates and their political action committees spent over $67 million

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for a one-for-one seat on the state supreme court. Most of this money came from outside groups. This broke previous records as the most expensive state supreme court race on record, outdistancing Wisconsin’s previous record of $40.1 million; and earlier records set in Illinois races ($22.1 million), Pennsylvania ($18 million), and North Carolina ($16 million). Running for a seat on a state supreme court now costs money and this money is usually out-of-state money.

The obvious question raised is whether voters learn more about their candidates or their state judiciary if justices are elected and not selected through a guided commission system as is common in most other states? The direct answer is an astounding “No.” Even in the midst of a bruising supreme court election in Wisconsin, when we conducted this survey, likely voters in the state did not know how their justices were selected. These results are replicated in every state no matter their selection process.

Political campaigns for electing justices fail to educate voters. Instead, political campaigns are designed to gin up voters. Accusation of corruption soft on crime, and right-wing extremism abound during these campaigns.

Why have supreme courts become the center of such political in-fighting? What propels campaigns and outside interest groups and big donors to spend tens of millions of dollars to get their candidates elected? Single issues such as abortion motivate some interest groups, but the real elephant in the room—not often discussed directly in campaigns—is state legislative voting districts. When state legislatures cannot decide legislative district boundaries, state supreme courts become involved. Voting districts determine party control over the state legislature and the state’s congressional delegation. In deciding voter districting, state supreme courts become, in effect, super-legislatures.

This commission makes a number of solid recommendations to better educate voters about the nature of the judiciary and the importance of the rule of law in our democracy. In the end, however, voters as citizens have an obligation to be informed themselves as to the nature and tradition of our American institutions.

Trust in our judicial system remains essential to American democracy. Experience teaches that once people lose confidence in their courts, chaos ultimately ensues. Our courts still enjoy general trust among the general public.

Our mission at the Center for American Institutions is to continue to strengthen and renew American institutions. Our work is funded by private benefactors. We want to thank our donors for supporting the Center for American Institutions. In particular, we thank David Katzin and his family for providing funding for the national survey of likely voters and their attitudes toward state courts, conducted by Noble Predictive Insights.

Donald T. Critchlow Director, Center for American Institutions

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Why Confidence in Our Courts Matters

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Introduction

Americans’ confidence in their nation’s judicial system and courts plummeted in 2025 to a frightening new low. Today, half of Americans have lost some confidence in our courts and judicial system. This is a 24 percent drop in public confidence over the last four years.

Public trust in our courts and the rule of law remain fundamental to our American Republic.

The great German historian Theodore Mommsen, writing in the 1850s about the collapse of the Roman Republic, observed that “the sacred sense of right and the reverence for the law, which it is difficult to destroy in the minds of the multitude, is still more difficult to replace.”1 Mommsen’s point is simple: civilization rests on a public faith in the rule of law; and once this faith is lost, it is difficult to restore.

At present, states select their supreme court justices through various systems, including direct election, gubernatorial appointment with legislative approval, and gubernatorial appointment with the guidance of commissions. This report addresses the fundamental question facing voters in each of our fifty states: will direct election of state justices aid in the restoration of confidence in our judicial system or further add to the perceived, if not real, politicization of our courts?

The report concludes that democratic elections of justices, although not without merits, fail to build confidence in the courts or enhance voter knowledge, and reinforces perceptions of the courts as extensions of political parties—not impartial arbitrators of state constitutional law.

If democratic elections cannot restore faith in a fundamental democratic institution— state courts—what can be done?

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Theodore Mommsen, The History of Rome, translated Dero A. Saunders and John H. Collins, Meridan Books, 1958), 515.

Trust in Our State Courts Voter distrust of the U.S. Supreme Court’s impartiality has spilled over into voter distrust of state courts. Recent surveys from Gallup, Pew, and the Annenberg Policy Center confirm the decline, with fewer than a third of Americans indicating that they trust the U.S. Supreme Court to issue impartial decisions.2 Worth noting, a 47 percent partisan gap separates Democrats and Republicans in their opinions of the Court’s trustworthiness.3 The partisan divide in the public on the Supreme Court reflects the Court’s decisions on controversial issues, abortion in particular. Furthermore, the bruising partisanship displayed in Senate confirmation hearings also contributes to polarization and reduced trust. The public is left with the impression that the Court is a creature of the political parties. Increasingly, the public views justices as little more than politicians in robes, deciding cases on the grounds of their partisan backgrounds.

State courts hear cases on contentious issues that sometimes have national implications.

In addition to high-profile criminal cases, issues such as the status of abortion laws and disputes concerning education, labor, and sexuality have been landing on state supreme court dockets in recent years.

Even more directly connected to the fortunes of political parties and national policy are election law cases—districting, ballot access and election procedures. These cases place courts in the position of giving one party an advantage in upcoming elections.

State supreme courts, as the John Locke Foundation observes, appear to the voters to have become “super-legislatures” that make important policy decisions.4 The methods of appointment to state supreme courts are varied and fluid, unlike the constitutionally prescribed appointment to the Supreme Court. The two basic patterns are appointments and elections, with substantial differences in the states’ rules governing both systems.

The various selection methods attempt to balance competing goals: independent expertise and accountability to citizens. The judiciary is not a political branch of government. It enforces rather than makes or executes law. State supreme courts are charged with reviewing the decisions of their legislative branches and reviewing lower courts’ decisions.

https://news.gallup.com/poll/511820/views-supreme-court-remain-near-record-lows.aspx; https://www.pewresearch. org/short-reads/2024/08/08/favorable-views-of-supreme-court-remain-near-historic-low/; https://www. annenbergpublicpolicycenter.org/trust-in-us-supreme-court-continues-to-sink/ 3 https://news.gallup.com/poll/651527/party-divisions-views-supreme-court-keep-ratings-low.aspx 4 https://www.johnlocke.org/regarding-the-judicial-races-in-north-carolina/ 2

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In periods of our history when democratic currents and distrust of political elites ran strong, such as the 1850s, accountability seemed linked with elections. When expertise was ascendent, such as in the founding period and the early 20th century progressive era, appointments or mixed systems emerged. The idea was to insulate the judiciary from partisan politics as much as possible. The same impulse explains the effort to distance judicial elections from high-turnout partisan contests by holding them in odd-numbered years or in Spring elections.

In the 21st century, faith in nonpartisan expertise in our government and our courts has all but collapsed. Furthermore, the hope that nonpartisan government and judges would allow for voters to be better informed and more knowledgeable proved to be a false dream.

Our survey finds voters poorly informed about the candidates, even in states with hotly competitive court races.

Confused Public Knowledge of State Courts This report brings attention to state supreme courts, examining public confidence in state courts, public knowledge of the courts, and attitudes toward reform.

The Arizona State University (ASU) Center for American Institutions commissioned a national survey, conducted by Noble Predictive Insights, of likely voters. The national survey included 1,005 likely voters. In addition, the firm surveyed 1,800 likely voters in six states that have different selection/appointment systems for judges. The six states encompassed different selection systems for choosing state supreme courts. These six included Arizona (guided appointment), Kansas (guided appointment), North Carolina (partisan election), Pennsylvania (partisan election), Wisconsin (election), and Virginia (legislative election). Many of these states have experienced notable controversies on issues such as voting rights and election procedures, labor law, and abortion rights. These six states encompassed different selection systems for choosing state supreme courts.

In total, approximately 2,800 likely voters were surveyed between January 6 and January 13, 2025, before federal courts became heavily involved in the Trump administration’s policies. What was revealed in the survey is that likely voters generally have little confidence in their courts and are habituated to viewing the courts as another political branch.

The confusion is understandable. As state courts play a larger and larger part in settling contentious political questions, judicial selection has become another piece of our polarized politics. Yet the function of the courts is fundamentally different from the executive and legislative branches under our constitutional system. The survey found some startling results.

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Research Findings: 1. Only half of those surveyed said they have at least some confidence in their state supreme courts.

2. Public confidence in state supreme courts, as our survey shows, is not improved by elections. As an additional signal of distrust, respondents strongly favored term limits and mandatory retirement.

3. Few respondents knew much about their state supreme courts. The most common source of information was local television news, although in election states, often negative ads likely also inform or misinform voters.

4. The majority of respondents in our survey favored democratic elections for state supreme court justices, even while opposing the huge amount of money spent by campaigns and outside special interests on these races.

5. Especially in those states in which voters directly elect judges, likely voters express deep opposition to expensive campaigns and special interest groups within and outside their states.

6. Although invisible to most voters, redistricting is a major concern of party leaders and activists, who have nationalized state elections.

7. Through political control of the courts, party leaders and well-organized partisan activists seek control of state legislatures and the U.S. House of Representatives.

8. To clarify, the struggle for control over state supreme courts revolves around political power. By politicizing the courts, the ultimate aim remains political dominance.

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Recommendations: Our recommendations aim to restore trust in a branch that should be independent rather than an extension of the legislative and executive branches or partisan activists.

• Guided appointment systems are not perfect, especially in providing for accountability. But they are preferable as a way to create a merit-based, independent judiciary, especially if paired with diverse and representative nominating commissions.

• Elections, partisan or nonpartisan, suffer from too many problems: out-of-control spending by outside groups, pressure on candidates to turn into political campaigners, and an electorate with little real information about the candidates or the office. Nationalizing elections makes matters worse by bypassing state concerns.

• State supreme courts need to break out of their legal ivory towers to engage in civic education. State supreme courts can do a much better job of explaining their decisions to citizens. Courts need to go beyond legalistic worded press releases or websites to explain majority and dissenting decisions.

• State supreme courts need to engage social media experts to explain the complexity of controversial cases that come before them. Currently, state courts provide websites that discuss rulings in complex legal terminology that is beyond the comprehension of the average citizen.

• State legislatures or governors should provide funds for the hiring of media relations specialists working for the court.

• State supreme court judges should consider offering frequent public forums on critical rulings.

• State legislatures should consider mandating courses in public schools and public-funded universities on the history of constitutional decisions, such as “Debating the Constitution,” which can survey key court rulings from Marbury v Madison through Dobbs v Jackson.

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The Selection and Retention of State Justices

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The Selection and Retention of State Justices States employ two basic methods—elections and merit appointments—to select state supreme court justices. There are a dizzying number of permutations within each method, especially merit appointments.

The diversity of systems in choosing state judges is captured in Figure 1 below:

Figure 1

Judicial Selection Methods in State Surpeme Courts for Full Terms

Nonpartisan election

Partisan election

Assisted appointment (bar-controlled) Assisted appointment (hybrid) Legislative election

Michigan method Assisted appointment (governor-controlled)

Gubernatorial appointment States that require confirmation

Note: State senate confirmation required in DE, HI, MD, NJ, NY, UT, and VT. State senate and state house confirmation required in CT, RI, and TN. Confirmation from a joint committee is required in ME. Executive Council and Governor’s Council approval required in NH and MA, respectively.

Confirmation is required from the Commission on Judicial Appointments in CA. Arizona governors appoint judicial nominating commissioners, who are subject to state senate confirmation and therefore are not fully controlled by the governor.

BALLOTPEDIA

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In twenty-two states, voters elect their state supreme courts either through partisan or nonpartisan elections, with nonpartisan elections being most common. Michigan splits the difference with partisan nominations followed by nonpartisan elections. North Carolina has bounced between partisan and nonpartisan elections. While Wisconsin’s elections are technically nonpartisan, they have been among the most partisan in recent years.

Two states, Virginia and South Carolina, use legislative elections to select justices.5 Those states do not attract much money or controversy.

Five states follow some variation of the federal process: justices are appointed, either by governors with the advice and consent of legislatures or, in three of those states, confirmation by special judicial commissions.

Twenty-one states plus the District of Columbia follow commission-guided appointment plans.

These plans vary, but they tilt in the direction of merit selection. The guidance in these systems is provided by independent commissions. The selection of commissioners varies in the states.

Currently Kansas has an advisory commission that relies on the state bar to recommend judicial appointments. Elected Democratic governors have dominated appointments. As a result, the Kansas Supreme Court is dominated by Democratic-appointed judges. To remedy this perceived partisanship in the court, the current Republican-controlled legislature placed on the November 2025 ballot a constitutional referendum requiring democratic election system of justices.6

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https://ballotpedia.org/Judicial_selection_in_the_states#Arguments_for_and_against_judicial_selection_methods https://thebeaconnews.org/stories/2025/02/26/kansas-republicans-want-to-elect-state-supreme-court-justices/

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The Kansas system dates to the 1950s, when reformers no doubt expected a moderate state bar that would screen for expertise, character, and temperament. It is the only state that rests so completely on the state bar. As in many states, the Kansas bar is left-leaning.

More commonly, states try to bring in more diverse backgrounds to their nominating commissions.

Nine states follow a hybrid model that typically features appointment by governors of candidates nominated by a commission and confirmed by legislatures. In eight states, including Arizona, governors exercise a great deal of control by choosing the members of the commission.

Retention elections, either after a fixed number of years or after serving a term, are common in guided appointment states. Arizona provides voters with a review of justices’ performance.

Each system has advantages and disadvantages. While elections potentially promote accountability, they slide too easily into partisan polarization and hot-button issues with dubious relevance to the job of the court.

The democratic election of judges presumes that legal decisions are fundamentally political.

This assumption that courts are necessarily political misunderstands that most state courts review cases that are not partisan or immediately political. Most courts follow the formal and well-understood “doctrine of political decision” that states that cases best handled by the state legislature or the executive office should not be reviewed by the court.

The one great exception to this “principle of political decision” occurs in voter redistricting.

In 1962, the Supreme Court held in Baker v. Carr that federal courts are allowed to hear claims regarding state legislative apportionment. This landmark decision led to a wave of litigation across the country, which continues today. In 2023, the U.S. Supreme Court in Moore v. Harper ruled that state legislatures do not have sole authority within their respective states for federal elections. Instead, state courts can review state legislation about voter requirements and legislative districts.

State voting requirements and legislative districts are, by nature, highly partisan and generally make a case for the democratic election of state justices.

Elections, even nonpartisan ones, likely screen for politically active or generally party-aligned justices. Furthermore, nonpartisan elections, according to one study, do not promote judicial independence in comparison to partisan elections, especially on prominent, contentious issues.7 A case for partisan democratic election to the supreme court can be made because the electorate often lacks general information about candidates running for the state supreme court. Party labels provide a clue to voters as to how an elected justice might vote on a case before the court.

If judicial elections are, by nature, partisan, why not recognize it and have democratic elections? Yet, democratic elections entail campaign money—increasingly huge amounts of money. This means a reliance on special interests to provide campaign funds.

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https://biblioteca.cejamericas.org/bitstream/handle/2015/2258/Judicial-Independence-and-Nonpartisan-Elections. pdf?sequence=1&isAllowed=y

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Guided Appointment Systems

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Guided Appointment Systems Judicial elections, whether or not candidates run under party labels, challenge the principles of the separation of powers and an independent judiciary that distances itself from political pressure. As a result, some form of appointed system is compelling in providing a barrier to overt partisanship on the part of the court.

Legal scholars and court-watchers tend to support some sort of appointment system, either guided or direct, with the assent of the legislature. These assessments cross the ideological spectrum, from the Federalist Society to the Brennan Center for Justice.8 Some political scientists, however, find no danger posed by elections to what they see as another political branch.9 One study that compared the quality of work of justices in elected versus appointed states found that appointed justices wrote higher-quality decisions, while those elected wrote more decisions.10 We are left to decide whether we prefer lower-quality decisions or fewer but higher-quality ones.

Guided appointment systems can favor insiders known to state bars and governors, and potentially are open to cronyism. Broadly based, diverse nominating committees, however, can minimize this danger.

Justices who get their seats through guided appointments often face retention elections, which bring a measure of accountability. Few retention elections are controversial, but some have become highly politicized as special interests have conducted well-organized and well-financed campaigns to oust standing judges up for retention.

For example, in the 2024 retention election of two state supreme court justices in Arizona, Planned Parenthood, in collaboration with other organizations, pledged over $5 million against the retention of two specific justices, notably Justices Clint Bolick and Kathryn Hackett King.

The National Democratic Redistricting Committee joined in this effort to defeat Bolick and Hacket for remaining on the court. Support for their retention came from the Judicial Independence Defense PAC, which spent over $300,000 in support of Bolick and Hacket. Arizona voters ultimately voted to retain both judges.

https://fedsoc.org/commentary/publications/the-case-for-judicial-appointments; https://www.brennancenter. org/sites/default/files/publications/Rethinking_Judicial_Selection_State_Courts.pdf; https://web.archive. org/web/20160513002654/http://www.americanbar.org/content/dam/aba/migrated/JusticeCenter/Justice/ PublicDocuments/judicial_selection_roadmap.authcheckdam.pdf 9 Chris W. Bonneau and Melinda Gann Hall, In Defense of Judicial Elections (New York: Routledge, 2009).

10 https://scholarship.law.duke.edu/faculty_scholarship/2428/ 8

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Any discussion of what system works better—an election system or a guided appointment system—needs to explore the larger context of voter distrust. Any effort to rebuild trust will need to take account of five factors: 1. previous U.S. Supreme Court decisions that inadvertently encourage politicization of the courts; 2. partisan division among voters on trust in the judicial system as a whole; 3. voters’ lack of knowledge about the state supreme courts and what they do; 4. limited and sometimes misleading information about the courts; and 5. the nationalization of state supreme court elections.

These factors are essential to any attempt to restore trust in our courts.

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How Distrust of the U.S. Supreme Court Bled into State Judiciaries 22

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How Distrust of the U.S. Supreme Court Bled into State Judiciaries The state supreme courts have been swept into a polarized political environment. Recent Supreme Court decisions, as well as federal court rulings on multiple Trump administration policies, have fueled partisan feelings. Both the Democratic Party and the Republican Party have used federal court rulings to fire up their bases.

Partisan emotion has spilled into elections for state supreme court seats. The result has been increasingly expensive and vitriolic partisan campaigns for state supreme court elections.

These campaigns often mislead voters about the constitutional duties and responsibilities of the state supreme court. Furthermore, these campaigns impart to the public an image of a politicized court.

Partisan control of a state supreme court is important to both political parties, whether court appointments are elective or selective, because state courts are involved in contentious legislative battles over voter district maps.

Four Supreme Court decisions have shaped judicial elections.

In Republican Party of Minnesota v. White (2002), the Court decided that the state’s code of judicial conduct, which prohibited judicial candidates from announcing views on issues that might come before the court, was an unconstitutional restriction on speech.

Citizens United v. Federal Election Commission (2010) eliminated restrictions on independent political expenditures from corporations and labor organizations. The court ruled that the First Amendment protects political advocacy as free speech, and therefore the government cannot limit independent expenditures for political advertising.

For-profit corporations have not shown much interest in making political contributions.

Nonprofits have. Charitable nonprofit 501(c)(3) organizations, such as the Sierra Club, the Tides Network, and Planned Parenthood, had long lobbied for their issues. While they risk losing their tax-exempt status if they engage in campaigns, they can engage in voter education.

Non-tax exempt 501(c)(4) “social welfare” organizations can do more. They can spend up to half of their resources in political campaign activities that are not coordinated with candidates or parties.

Like the nonprofits, other groups existed before Citizens United. Under federal law, 527 groups, including Political Action Committee’s (PACs) and super PACs, disclose contributions and act independently of candidates.11 11

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https://www.everycrsreport.com/reports/RL33888.html; https://afjactioncampaign.org/wp-content/uploads/sites/318/ AFJAC_501c4Regulation_Timeline_Final.pdf; https://www.irs.gov/pub/irs-soi/tehistory.pdf; https://capitalresearch.org/ app/uploads/171128-CRC-CitizensUnited-02.14.2018-v2.pdf

Gaming the system has become common. Pop-up shadowy “social welfare” groups and super PACs suddenly appear before elections and contribute heavily to the candidate of their choice without disclosure. “Straw donors”—many small or fewer large fictitious individuals or shell companies—conceal identities.12 These abuses are legislative enforcement issues. The Democratic party is unlikely to offer fixes despite being the traditional engine that pushed for campaign finance reform. Democratic Party candidates are major beneficiaries of 501 (c)(4) contributions and they regularly outspend Republicans in recent competitive elections.13 Republicans are leery of reforms that would disclosure PAC donors for fear that these donors might be targeted by opponents.

Technology perhaps more than Citizens United has supercharged spending. Fundraising has become more efficient, even as the appeals that work best to bring in small-dollar contributions are those that are the most inflammatory. Campaigns and independent groups rapidly create ads that used to take weeks and push them out on social media as well as television. Advertising is ubiquitous in close races, with data analytics allowing for ever-finer targeting. The result is bloated and wasteful campaigns.

Two other decisions provide a motive for spending on state supreme court elections.

In Rucho v. Common Cause (2019), involving state supreme court oversight electoral districting by the North Carolina legislature, the Court ruled that the state supreme court has jurisdiction for reviewing of legislative mapping.14 The split 6-3 decision established that the Federal Elections Clause does not vest full, exclusive, and independent authority to state legislatures regarding federal elections. Instead, Rucho maintained that state courts provide a necessary check and balance to legislative authority.

This ruling affirmed that state courts have the authority to interpret state laws affecting federal elections.

The importance of state supreme court elections, the stopping point of district map approvals, rose as a priority for both political parties, super PACs, and 501 (c)(4) groups. Those elections became matters of national, not merely state, interest. Even in states dominated by one party, districts can be redrawn to further lower the prospects of the minority party winning an election. Minority parties often press for “independent” panels to design districts, but district boundaries determined by “independent” panels also can become subject to court adjudication.

This places an even greater importance on partisan control of the courts.

Voters remain generally unaware of what appears to be arcane battles over legislative districting. State supreme court candidates rarely discuss the integral relationship between the courts and legislative redistricting.

https://www.opensecrets.org/dark-money/basics; https://campaignlegal.org/update/how-does-citizens-united-decisionstill-affect-us-2025 13 https://capitalresearch.org/app/uploads/171128-CRC-CitizensUnited-02.14.2018-v2.pdf; Raymond LaRaja, Small Change: Money, Political Parties and Campaign Finance Reform (Ann Arbor: University of Michigan Press, 2008).

14 https://harvardlawreview.org/print/vol-133/rucho-v-common-cause/ 12

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Even in states deluged with advertising in a judicial campaign, voters are unlikely to be informed about the role the court plays in producing district maps.15 Instead, perceived hot-button issues become the focus of judicial election or retention campaigns. These issues have included, most recently, abortion legislation and state crime rates. State supreme courts play a less significant role in criminal enforcement than city district attorneys or county prosecutors.

Following the U.S. Supreme Court’s decision in Dobbs v Jackson Women’s Health Organization (2022), which overturned Roe v Wade, many state courts adjudicated cases concerning abortion rights and state regulation. As these cases are heard, reproductive rights should become less of a focus of the courts. Yet, state candidates in the future are likely to focus on “reproductive rights” to mobilize their partisan bases.

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North Carolina is an exception, where ads for and against candidates have mentioned redistricting.

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Trust in the State Courts

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Trust in the State Courts In this hyper-polarized political environment in which courts have become directly involved in hot-button issues, public trust in the courts has declined. This decline mirrors the general decline in public trust of politicians, elected officials, institutions, and expertise—sometimes for good cause.

Polling on public trust in state supreme courts is minimal. For this reason, ASU Center for American Institutions commissioned a national survey of voters’ attitudes toward their state supreme courts. Public trust in state supreme courts was measured through the question, “Do you believe that your state supreme court usually gets decisions right?” Respondents were asked if they strongly agree, somewhat agree, strongly disagree, or somewhat disagree.

If survey respondents strongly or somewhat agree that their state court generally arrives at the “correct” decision, then this suggests trust in their courts. Similarly, a strongly disagree or somewhat disagree response suggests general lack of trust in their courts.

Other questions in the survey tested for respondents’ knowledge of how their justices are selected, and where they are receiving their information. Responses were then analyzed through regression models.

The Center for American Institutions survey shows that trust in state supreme courts remains abysmally low. Only about half of likely voters surveyed express general trust in their state supreme courts. Republicans are slightly more confident in their courts, and Independents are the least confident in their state courts.

Figure 2

“My State Supreme Court usually gets decisions right” Total Likely Voters

Republican

Democrat

Independent

Strongly Agree

13%

17%

14%

8%

Somewhat Agree

37%

40%

40%

32%

Somewhat Disagree

18%

15%

19%

21%

Strongly Disagree

8%

8%

7%

8%

Not Sure

24%

21%

21%

30%

Note: Percentages drawn from a national sample survey conducted by Noble Predictive Insights.

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Nearly one-quarter of the likely voters in the survey express ignorance of their state supreme courts decisions.

A detailed analysis of the survey finds unexpected patterns: • Women expressed greater distrust than men, as did liberal and moderate voters.

• Conservatives generally trust the U.S. Supreme Court. Liberals and moderates express greater distrust. These sentiments are reflected in partisan trust in state courts.

• Partisan expression of attitudes toward the courts were found in voluntary comments made by respondents in the survey. The most commonly mentioned cases focused on federal court decisions, not state supreme court decisions. In particular, respondents mentioned Roe, Dobbs, and Citizens United as influencing their attitudes toward state courts.

• The commission’s survey, conducted in mid-January 2025, before a flurry of federal court decisions blocking President Trump’s policy agenda and actions, in all likelihood would have diminished conservative and Republican confidence in the courts.

Elections do not increase trust in state supreme courts. As Figure 3 illustrates, the tendency to disagree with the statement that their courts get it right was higher in election states.

Figure 3

Mean Disagreement with Trust Statement

by Ideology and Election System 2.5 2 1.5 1 .5 0 Election

Other

Conservative

Election

Other

Liberal

Election

Other

Moderate

Since accountability—and presumably the trust that flows from that—is a key argument for elections, our results do not find elections themselves to be a remedy for addressing public distrust of our courts.

Indeed, we find higher levels of distrust in election states.

Other questions indirectly measured trust. Those surveyed want turnover in their state supreme courts. Seventy-seven percent of those in the national survey either strongly or somewhat agreed with the need for term limits for justices. Support for this idea was solid across party, ideology, race, gender, education, and income.

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Age-specific mandatory retirement, a provision in 34 states, is also popular, with 74 percent of the national survey supporting the idea. The oldest cohort, over 65, was the most enthusiastic group, with 82 percent support. In states with mandatory retirement, the age ranges from 70 to 75.16 Mandatory retirement is increasingly the only way vacancies occur. As recently as seven years ago, an overwhelming majority of justices did not wait to reach the mandatory age to leave the court.17 Fewer justices are retiring unless forced to do so, as seen in Figure 4 below:

Figure 4

State Supreme Court Vacancies, by Reason Retired, 2019-2023* Voluntary Ret.

25%

Mandatory Ret.

24% 75%

2019

24% 76%

2020

33% 76%

2021

67%

2022

50%

50%

2023*

*2023 numbers reflect retirements between January and June 2023.

Justices that retire less than a year before their mandatory retirement date are counted as mandatory retirements.

BALLOTPEDIA

Another measure of trust, a question about whether likely voters believed their state supreme courts were overly partisan, produced mixed results. Our survey revealed that only 38 percent either strongly or somewhat agreed that their courts are impartial, but nearly the same percentage, 35 percent, were not sure. College graduates (42 percent) and post-graduates (46 percent) were more likely to detect partisanship.

The pattern differed in election states that have experienced fiercely fought partisan elections.

In Wisconsin, while 35 percent offered no opinion, 42 percent found their court overly partisan, with college graduates (51 percent), men (48 percent), Republicans (46 percent), and independents (48 percent) leading the way.

North Carolina’s percentage of voters who see their courts as overly partisan was slightly higher than Wisconsin’s. In North Carolina, 43 percent said their court was overly partisan, with 36 percent having no opinion. Independents (48 percent), men (53 percent), and those with college degrees (51 percent) were most likely to note partisanship.

16 17

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https://ballotpedia.org/Mandatory_retirement https://news.ballotpedia.org/2023/07/11/mandatory-retirement-ages-responsible-for-half-of-state-supreme-courtretirements-this-year/

Democrats control Pennsylvania’s State Supreme Court. In Pennsylvania, Democrats (43 percent), men (47 percent), 18- to 44-year-olds (46 percent), and non-whites (48 percent) viewed their court as partisan. This sentiment of distrust was in contrast to 39 percent of likely voters in the state that believed their supreme court is nonpartisan. Still over a third of respondents (38 percent) did not have an opinion.

Respondent comments hint that their attitudes toward the state supreme court were shaped by other matters. Comments suggest that they were concerned with the U.S. Supreme Court or national politics, since respondents mentioned Dobbs and Roe v Wade along with “Trump,” “TikTok,” “Joe Biden”, and food costs as explanations as to why they distrusted state courts.

Arizona, a guided appointment state, also showed a decided partisan lean. In the state, 39 percent of the likely voters found their court overly partisan with 52 percent of Democrats labeling the court partisan.

Yet, paradoxically, 44 percent of Democrats in Arizona indicate that their court usually gets decisions right, which matched the total voter population. Respondents who left comments on what shaped trust or distrust in the courts suggested that a recent controversial decision on abortion legislation shaped Democrats’ views.

In Kansas, another guided appointment state, a plurality, 41 percent, had no opinion about partisanship in their courts. Democrats control the Kansas state supreme court. In response, Republicans legislators are proposing a voter referendum to install elections as the selection method for their court.

Nonetheless, 41 percent of Democrats versus 32 percent of Republicans described their court as overly partisan. Kansas likely voters also mentioned Dobbs, Trump, and how criminal cases were decided in explaining their discontent with the state court.

Many Americans, we can conclude, distrust their state supreme courts. Sometimes distrust arises out of specific court decisions, but also out of a more general distrust of political and legal institutions. Respondents often vented about matters disconnected from their state courts.

But what do they know about the courts they distrust?

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What Voters Know

34

35

What Voters Know Voters know little about how their supreme court justices are chosen.

This ignorance is found among Republicans, Democrats, and Independents, and in states that elect justices and in those that appoint them. What they do know are contentious decisions such as Dobbs or heated Senate hearings confirming Supreme Court appointments. Attitudes toward these high-profile and controversial cases are translated into attitudes toward state supreme courts.

State supreme courts do not enjoy the same visibility except in unusual circumstances.

They make news with decisions in high-profile election law, abortion, or redistricting cases.

Normally, the public and local news pay little attention to state court decisions.

Our survey shows that elections, the most reliable and regular means of gaining the public’s attention, fail to educate voters even on the most basic facts.

We asked likely voters the extent to which they followed decisions of their state supreme courts. “A lot” and “None” polled nearly equally. Despite some well-publicized cases on abortion and voting rights, state supreme courts do not command the notice of many voters.

An elected judiciary did not make voters more attentive. There was virtually no difference between election and appointed states in voters who paid attention to the decisions of their courts. This lack of knowledge is clearly evident in Figure 5:

Figure 5

Likely Voters Following Decisions of State Supreme Courts 45 40 35 30 25 20 15 10 5 0

Non-Election States A Lot

36

Some

Election States Not Much

None

Even voters in states that have held fiercely-competitive elections know little about how their states select justices. Likely voters in states that hold elections know slightly more about the selection process than do likely voters in states that use appointments, but the knowledge gap is minuscule and does not belie the conclusion that voters are generally ignorant when it comes to how one of their justices gets seated on the bench.

Taking our national survey as a baseline, only 37 percent of likely voters indicated that they knew how state supreme court justices in their state are selected.

Virginia: Awareness was lower in Virginia, where the state legislature elects justices.

Only 34 percent of Virginians indicated that they knew how justices were selected.

North Carolina: On the other extreme, North Carolina has recent experience with elections so tight that they went to recounts and legal challenges. There 52 percent of registered voters said they knew how justices were chosen.

Pennsylvania: In Pennsylvania, an election state, only 40 percent of likely voters were aware of how justices were chosen. Even in a state in which elections in 2017 and 2023 attracted massive spending and advertising, and have elected justices since the 1870s, a minority of voters felt certain they knew the method of selection Wisconsin: Most striking is Wisconsin. In a state that has seen more than its share of hard-fought state supreme court elections, only 49 percent of the survey respondents reported knowing how justices are selected. As our survey was being conducted, a campaign that was already receiving national as well as state-wide attention was underway.

A slight majority of likely Wisconsin voters claimed not to know how their state supreme court justices gained office despite recent, repeated, expensive campaigns that blanketed the state with ads and received extensive national as well as state news coverage.

Voters’ awareness of how their justices are selected did not vary significantly by ideology or party. Education, race, gender, and age were significant. Younger voters (49 percent of the 18-29 group in the national survey versus 31 percent of the over 65 cohort) reported that they knew how their states selected justices. Men more than women, and non-whites more than whites, also reported knowledge of their state’s system.

Still, most likely voters lack a basic understanding of what state supreme courts do or even of how justices are chosen. Some voters claim to follow news about their state courts at least to some extent. How do voters gain information about their state courts? Is the information useful?

37

How Voters Learn About Their Courts

38

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How Voters Learn About Their Courts The courts are at the mercy of state and local media to inform the public. Often reporters find legal cases opaque and focus on the most controversial cases, often to the neglect of other cases that might have profound implications for the state. Because many newspapers and local television stations face declining readership and viewership, they tend to focus on controversial issues to attract public attention. At the same time, special interests spin the decision in a way that influences the media’s narrative of the case.

An unexpected result of our national survey shows that local television news provides the major source of information for public knowledge about their state courts. Both Republicans and Democrats in our survey rely on local news for their knowledge about their state courts.

Sixty-one percent (61) of those surveyed rely on television news. Only 26 percent turned to local newspapers. National TV news and online national newspapers, which usually cover only controversial decisions, is the second major source of information for the public. Specifically, 37 percent of respondents state that their knowledge of their state courts is derived from national TV news.

Equally astonishingly, younger voters are somewhat more likely than others to indicate that they follow state supreme court decisions. Yet, the demographics for local TV news viewership trends toward an older age demographic. Older, black, Hispanic, and non-college educated citizens are the most likely to follow TV news. Only 16 percent of those 18-29 years old who took part in a Pew Center survey reported that they followed local news closely.18

Figure 6

Older Americans, Black Adults, and Americans with Less Education Are More Interested in Local News % of U.S. adults who follow local news “very closely”

Total

White

31%

28%

Black 18-29 30-49 50-64 65+

46%

Hispanic

15%

34%

28% 38% 42%

College Degree Some College High School or Less

25% 30% 36%

Note: Whites and blacks include only non-Hispanics; Hispanics can be of any race. Sourse: Survey conducted Oct. 15 - Nov. 8, 2018 “Older Americans, Black Adults and Americans With Less Education More Interested in Local News” PEW RESEARCH CENTER 18

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https://www.pewresearch.org/journalism/2019/08/14/older-americans-black-adults-and-americans-with-less-educationmore-interested-in-local-news/

In election states, spending, advertising, and interest group activities also make the news. If there are debates, responses to controversial questions are newsworthy. Otherwise, decisions that reporters see as worthy of public attention, such as an appealed verdict on an infamous crime, hearings dealing with voting rights, and abortion cases get space.

What voters learn from TV news can be misleading. For example, in 2024, television news in Arizona reported that the state supreme court upheld an 1865 territorial law that banned nearly all abortions and opened providers to criminal charges. The reporting focused on policy, as if the court favored the law, with no explanation of the court’s reasoning but plenty of responses from politicians and advocacy groups.

An Arizona voter would have to dig deep to find an accurate account of the issue at stake for the court: a review of the 1977 recodification of the territorial law. The state court reviewed the constitutionality of state legislation passed in 2022 that did not revoke the 1977 abortion legislation. The 1977 abortion legislation, signed into law by a Democratic governor, outlawed abortion in most cases. Clearly the 1977 legislation (banning abortions in most cases) and the 2022 legislation (regulating abortion) were in direct conflict with one another.19 The Arizona State Supreme Court was given a simple charge: without a clear repeal of previously enacted abortion legislation, was this earlier legislation still on the books? In enacting new legislation regulating abortion, while failing to repeal legislation banning abortion, the state legislature acted in conflict with the state constitution. The court was not responsible for ruling on the constitutionality of either law, but whether earlier legislation still stood because the legislature had failed to repeal it.

In a 4-2 decision, the court ruled that the earlier legislation banning abortion was still in effect, because the legislature had failed to repeal it. Speaking for the majority, Justice John Lopez declared, “A policy matter of this gravity must ultimately be resolved by our citizens through the legislature or the initiative process. Today, we decline to make this weighty policy decision because such judgments are reserved for our citizens. Instead, we merely follow our limited constitutional role and duty to interpret the law as written.”20 In a heated political environment, special interests and much of the media portrayed the court’s decision as standing in favor of banning all abortions. When two of the justices who had voted with the majority came up for a retention vote in 2024, they were targeted by pro-reproductive opponents as anti-abortion fanatics living in the frontier days of yesteryear.

https://www.kold.com/2024/04/09/arizona-supreme-court-rules-favor-1864-territorial-law/; https://www.azfamily. com/2024/04/09/arizona-supreme-court-rules-abortion-access/; https://azmirror.com/2024/04/12/the-history-ofabortion-regulations-in-arizona/ 20 Planned Parenthood v. Kristin Mayes & Hazelrigg, 545 P.3d 892 (Ariz. 2024) 19

41

Campaign Advertising and Public Miseducation

42

43

Campaign Advertising and Public Miseducation Advertising is ubiquitous in election states and has crept into retention elections campaigns in guided appointment states. Advertisements, positive and negative, cut across media. They run the gamut from flyers featuring smiling justices or scary mug shots of criminals stuffed in mailboxes to slick videos that appear on social media as well as television.

PACs specialize in negative advertising, while candidates often try to distance themselves from these negative ads. Outside groups seek to get the most for their money through attack ads on character, anything that hints at corruption, and hot-button issues.

Crime plays well as a negative theme in advertising. The more sensational the crime the better.

Child molesters, rapists, and especially brutal murders: the worst sorts of criminals guaranteed to spark outrage if they appeared to escape prosecution star in the ads.

Such ads direct attention to matters that are largely irrelevant to the work of state supreme court justices. If they hear cases involving heinous crimes, they consider questions about whether the law and procedure were followed at trial, not guilt and innocence.

As Barry Burden, director of the Elections Research Center at the University of WisconsinMadison, put it, “What the ads are about is not what the court is about.” Instead, the cases the state supreme court hears are “about facts and precedent and legal theories and their understandings of the law.” The ads, especially those run by outside groups “can be about whatever the groups think would be effective to get their side a victory.”21 At best, such attacks, widely disseminated in the media, might help voters make a guess about a candidate’s judicial philosophy.

The Brennan Center for Justice has been tracking ads and ad spending since 2000. The enormous importance of crime as a theme in judicial elections has been a constant over the decades. In the 2015-2016 cycle, 34 percent of the ads they surveyed (in conjunction with AdImpact, a marketing research firm) covered crime. That theme accounted for 42 percent of the negative ads. The cycle’s proportion of crime ads was around the norm and actually down from the previous cycle’s 56 percent.22 The percentage of crime ads tends to edge out biographical ads. The vast majority of those ads describing qualifications and backgrounds are produced by the candidates’ own campaigns.

https://wisconsinwatch.org/2025/03/wisconsin-supreme-court-election-crawford-schimel-ads-spending-musk-trumpsoros/ 22 https://www.brennancenter.org/media/279/download/Report_New_Politics_of_Judicial_Elections_1516.pdf?inline=1 21

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While positive ads—ones that introduce candidates’ experience, education, endorsements, and personal and family background—are campaign staples, negative ads have become increasingly prevalent in election states.

If the endless streams of crime ads are generally irrelevant or misleading, voters do want information. Likely voters in our survey indicated that they wanted candidates for judicial appointments to declare their positions on issues. In the national sample, 76 percent agreed or strongly agreed. A slightly smaller but still clear majority, 70 percent, believed candidates for state supreme courts should declare their partisan affiliation, which would provide some guide to the likely approach of a justice.

Still, the vast majority of cases that come before state supreme courts do not come with party labels. Because cases come before courts with complicated factual and legal issues, justices traditionally remained silent on specific issues, in line with their code of ethics and fearing that their objectivity in ruling on a case would be questioned.

A look at specific court races for election or retention shows how negative campaigning is now a regular feature in state judicial campaigns.

Wisconsin: Wisconsin’s hotly-contested 2025 election blew by previous records for ad spending. The race pitted Republican Brad Schimel against Democrat Janet Crawford.

Over $67 million was spent for advertising alone for one seat on the state supreme court.

Forty-four percent (44) of the ad buys were purchased by outside groups.23 This campaign set new records for campaign spending for a state supreme court seat, as seen in the chart below:

Figure 7

Most Expensive State Supreme Court Races On Record WI 2025

$67.1M

WI 2023

$40.1M

IL 2022

$22.1M

PA 2023

$18.3M

NC 2022

$16.1M

OH 2022 MI 2024

$11.2M $7.5M

OH 2024

$7.2M

NC 2024

$6.4M

WI 2020

$6.0M

ADIMPACT

23

https://adimpact.com/blogs/2025-wisconsin-supreme-court-race

45

Although both sides spent heavily, the Democratic candidate Susan Crawford outspent her Republican opponent Brad Schimel, as seen in Figure 8:

Figure 8

Top Advertisers in the WI Supreme Court Race (2025) Susan Craweford

$24.8M

Brad Schimel

$13.5M

A Better Wisconsin Together

$9.8M

Building America’s Future

$7.3M

WMC Issues Mobilization Council Fair Courts America

$5.4M $3.6M

Candidate vs Group Spending by Party Candidate Spending Donated by Darker Shade

$11.5M $25.0M Total: $36.5M

$13.5M $18.3M

Total: $31.8M

Note: Includes future reservations as of 3/27 ADIMPACT

In the late stages of the campaign, billionaire Elon Musk began contributing heavily to the Republican candidate. At this point, Elon Musk became the target of a new round of negative ads. One, for example, asserted that Schimel had a pattern of doing favors for campaign donors, and naturally had some payoff in mind for Musk.24 Crawford won the election handily, but advertising in the campaign on both sides often misled voters as to the responsibility of the state supreme court.

According to a Brennan Center study, negative ads—ones attacking an opponent’s character, as in the above example, or previous rulings often in misleading ways—were on the upswing.

They found that 35 percent of the ads run in the 2015-16 election cycle were negative, up from the 21 percent in 2013-2014. Wisconsin led the way in negativity.25

24 25

46

https://host2.adimpact.com/admo/viewer/73e818a1-d58a-404c-8d35-75e7f36d71b9/ https://www.brennancenter.org/sites/default/files/publications/Politics_of_Judicial_Elections_Final.pdf

A whopping 34 percent of the ads run in Wisconsin’s 2025 race dealt with crime, according to an analysis by AdImpact. This single issue dominated the airways as ads for each side claimed to be the true supporter of law and order while the other side was soft on crime. Political action committees mined verdicts handed down by the judges that could be spun into their desired story — how Schimel’s office mishandled a backlog of rape kits and offered a plea deal to a child sex offender who later assaulted another child and how Crawford handed down four-year sentences to child sex offenders while the maximum was 60 to 100 years.26 In this campaign, the candidates defended the attack ads and highlighted some of their themes in a debate.27 The negativity of this campaign can be illustrated by PAC ads themselves:

Figure 9

Figure 10

In Wisconsin, 71 percent of likely voters agreed that candidates should state their views on controversial issues. Voters got their wish for viewpoint clarity, at least on abortion. In an example from 2023, “Wisconsin voters” explain that they will vote for Judge Janet Protasiewicz because, “She believes in our freedom to make our own decisions when it comes to abortion,” in contrast to unnamed extremists who want to ban all abortions.28

Figure 11

https://www.jsonline.com/story/news/politics/elections/2025/04/10/wisconsin-supreme-court-race-had-27-million-incrime-focused-tv-ads/83007602007/ 27 https://wisconsinwatch.org/2025/03/wisconsin-supreme-court-crawford-schimel-fact-check-debate/ 28 https://www.wispolitics.com/2023/protasiewicz-campaign-releases-first-tv-ads-in-wisconsin-supreme-court-race/ 26

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Even before Republican Party of Minnesota, some Wisconsin candidates announced their party affiliation in a nonpartisan election and signaled their views. In 2008, one candidate, who thought that “voters don’t like to be treated like children,” made clear that he was a Democrat who would come to the court with views about voter ID laws. He lost in the primary, but he was the future.29 After a 2015 law gave Wisconsin parties the ability to make unlimited donations to judicial candidates, the tie between candidates and parties drew tighter.

Pennsylvania: The Pennsylvania state supreme court race in 2023 pitted Democrat Daniel McCaffery against Republican Carolyn Carlucci. The ads called into question the integrity of both candidates.

While avoiding specific issues, the 2023 Democratic candidate for the state supreme court in Pennsylvania made it clear that he was a partisan Democrat who saw state supreme courts as a backstop against a conservative U.S. Supreme Court that was trampling on basic rights. His primary issue was abortion, although there was no immediate threat to the existing state law on the horizon. That issue, activists correctly reasoned, would fire up the base even if there was no current threat.30 Among the outside groups supporting his campaign was Everytown for Gun Safety, organized by billionaire and former New York City mayor Michael Bloomberg. It ran ads on abortion and Trump rather than firearms regulation, perhaps as the safer issue in the state.31

Figure 12

https://captimes.com/news/government/the-wisconsin-supreme-court-s-ugly-politics-explained/article_93b6148e-831811ee-9b37-b735a72dbc2b.html 30 https://www.wtae.com/article/pennsylvania-supreme-court-campaign-spending/45796089 31 https://www.youtube.com/watch?v=y55PUSUP8_k 29

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Both candidates criticized the negativity of the campaign. “I feel really strongly the negativity is a disaster for both of us. One of us is going to be up on that Supreme Court, and we’re both going to be bloodied at that point,” said the Republican candidate Carlucci. McCaffery, the Democratic candidate, agreed that he was “100 percent appalled by the tenor of this particular campaign.”32 The ads on both sides had at most a tangential relationship to the job of a state supreme court justice. Carlucci stood accused of scrubbing pro-life material from her website. The attack on McCaffery had to do with a decade-old scandal involving his brother and pornographic emails.

An ad that ran in 2017 was even more irrelevant to the state supreme court. In a likely effort to drive turnout, an ad sponsored by the state Democratic Party claimed that a vote for the Democratic candidate would be a way to vote against President Trump, who, the ad claimed, opposed equal pay for women.33 Kansas: In Kansas, a guided appointment state that gives a great deal of influence to the state bar, two dueling groups, Kansans for Fair Courts, which favors retention of sitting justices who gained their seats through Democratic Party governors, and Kansans for Justices, in opposition of retention, have engaged in ad wars. In 2016, the two sides traded attack ads predominantly about whether two brothers guilty of a brutal murder had received the proper punishment for their crimes.34 North Carolina: North Carolina candidates also have come closer to declaring their positions on issues. One Democratic candidate in her own 2022 ad implied that her Republican opponent would ban contraception and abortion. One Republican identified himself as a conservative in a break from the usual independent-will-follow-the-law portrayal.35 Stripping away pretense of partisan independence, candidates for the state supreme court increasingly declare their party affiliations and how they might vote on controversial issues.

The North Carolina Supreme Court is seen by many voters as producing a string of party-line votes on controversial issues. This public perception, as found in our survey, often belies the integrity of most justices in the state judiciary who seek objectivity and impartiality in their decisions.

Still, partisanship finds increased expression in recent state judicial election campaigns, and in 2022, even on the bench itself as both sides traded charges of partisanship.36 North Carolina voters were inundated with negative ads that offered—most times—miseducation and were often irrelevant to the responsibility of state supreme court justices. They would come away miseducated about the role of the justices in our system, but likely with the impression that party politics rules the judiciary.

https://www.cbsnews.com/pittsburgh/news/pennsylvania-supreme-court-candidates-attack-ads/ https://www.brennancenter.org/our-work/research-reports/buying-time-2017-pennsylvania 34 https://www.brennancenter.org/our-work/research-reports/buying-time-2016-kansas 35 https://www.brennancenter.org/our-work/research-reports/buying-time-2022-north-carolina 36 https://www.theassemblync.com/politics/nc-supreme-court-elections/ 32

33

49

The Paradox of Voters’ Beliefs on Democratic Elections

50

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The Paradox of Voters’ Beliefs on Democratic Elections Voters in our survey appear to want what they dislike: They are strongly in favor of elections for state supreme court justices; yet they also abhor the money involved in these elections and the influence of special interests.

This paradox may not be anything more than knee-jerk reactions. Americans believe that democratic elections are necessarily good, even while they are repulsed by the huge amount of money and negative advertising that are integral to today’s politics. Voters favor democratic elections, but loathe outside special interest influence that comes with these political campaigns.

Among the likely voters in our national survey, an overwhelming 69 percent favored elections over an appointment scheme, with Republicans leading the way with 74 percent. Interestingly, education, less than party, was the divide: the least support for elections came from those with postgraduate degrees (59 percent), while those with college degrees came in at 66 percent.

Voters who know well what costly campaigns stoked by special interest money look like support elections anyway.

Figure 13

Likely Voter Attitudes to Elections 75 60 45 30 15 0 Non-Election States Prefers Election

52

Election States Prefers Appointment

Don’t Know

This is so in states that already use elections, even those states that have undergone particularly ugly battles. Wisconsin has experienced the most expensive and negative contests for its supreme court. Still, 80 percent of the respondents back elections over an appointment system, with the most skeptical of elections describing themselves as independent (71 percent) or non-white (69 percent).

North Carolina also has had recent experience with expensive, sharply-partisan, hard-fought judicial elections. Still, 76 percent of the respondents favor elections. A gap in educational attainment on this question appeared, with 77 percent of non-college likely voters supporting elections and in contrast to 70 percent of the college educated. A gender gap absent in Wisconsin appeared in North Carolina, with 80 percent of the men but only 69 percent of women backing elections.

Likely voters in Virginia, a legislative election state that has not seen significant controversies, indicated relatively muted support for the popular election system. Only 66 percent overall preferred elections over appointments. Here too the education gap emerged, with the most pronounced lean in favor of elections coming from those without college degrees. A racial gap appeared in Virginia that was absent in other states, with black and Hispanic voters favoring elections significantly more than whites.

While voters want the opportunity to have their say in choosing justices through election, they disapprove of special interests and money that flows into political campaigns.

Even more than money in campaigns for legislative or executive positions, spending for the judiciary raises fundamental questions. The idea that contributions can buy policy outcomes from legislative or executive offices seems bad enough, but justice for sale strikes at the core of the rule of law. Although voters (and pundits) denounce negative advertising, negative advertising works. Special interests, political action committees know this, and so do the candidates, even while they decry negative advertising.

Respondents in our survey who live in states that elect justices express deep concern that too much money is being spent on elections. In turn, respondents in states that appoint justices, instead of electing them, do not see campaign money as a problem to the same extent.

Older voters were slightly more likely to believe that there was too much money in state supreme court elections, as were those who did not finish college or whose education stopped at high school.

53

Figure 14

Age Breakdown of “Too Much Money in State Campaigns” 3

2

1

0 Non-Election 18-34

35-49

Election 50-64

Over 64

As policy fights over abortion, redistricting, and election law have moved to state courts, money and attention have followed. According to the Brennan Center, which has tracked spending on judicial elections since 2000, costs have reached records in states that elect justices since the 2022 Dobbs decision. Outside groups have played an outsized role in driving spending.37 Outside money means special interest money, motivated by ideology and policy outcomes.

Our survey reveals that the influence of special interest in judicial elections cuts across the political spectrum. The expressed hostility to the role of special interests in the selection of justices is much higher than even those concerns about money spent in judiciary campaigns.

Indeed, 62 percent of respondents in our national sample believe that special interests play too great a role in the selection of judges.

Our analysis shows that older voters were most suspicious of special interests. To a lesser extent, education (some college and above) is significantly associated with believing that special interests influenced elections. Liberal voters, more than conservatives, see special interests playing too large a role in judicial selection.

As the Brennan Center graph illustrates, interest group spending has taken off in recent election cycles.

37

54

https://www.brennancenter.org/our-work/research-reports/politics-judicial-elections-2021-2022

Figure 15

Share of Spending By Interest Groups (By Cycle) 45 40 35 30 25 20 15 10 5

-2 02 1 20 20

-2 02 0 20 19

20 17 -2 01 8

-2 01 6 20 15

-2 01 4 20 13

-2 01 2 20 11

09 -2 01 0 20

08 07 -2 0 20

20

05

-2 0

04 20

03

-2 0

02 01 -2 0 20

06

0

Note: The U.S. Supreme Court issued the decision in Citizens United v. Federal Election Commission on January 21, 2010, in the middle of the 2010 electoral cycle. The first full cycle with Citizens United in place was the 2011-12 cycle.

Brennan Center analysis

Special interest involvement in judiciary campaigns is not new. Trial lawyers have long played a role, as have unions and business groups.

In recent years, groups with quite specific policy goals have entered into campaigns hoping to elect justices who align with their agendas. Planned Parenthood Votes and Everytown for Gun Safety, for example, back candidates that support their views on abortion and gun control.

Groups for and against school choice also weigh in on candidates that are most likely to agree with their cause.

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Judiciary Elections: Monied Democracy in Action?

56

57

Judiciary Elections: Monied Democracy in Action?

The close examination of state elections illustrates the importance of money in state judicial campaigns.

Wisconsin The hotly-contested 2025 state supreme court election in Wisconsin—a nonpartisan state— has smashed the previous record set by the 2023 race for spending. That contest drew $56 million; in 2025, the sum was nearly doubled.38 This happened in a state that touted the passage of the Impartial Justice Bill in 2009, which provided for public financing and caps on individual contributions.39 Despite the promise that this measure would curb the influence of special interests, it has instead supercharged independent expenditures, money spent by individuals or groups for or against candidates without technical coordination with a campaign. The sum is up by more than 100 percent over 2023. Much of this money comes from out-of-state sources.40 A toxic blend of circumstances has made Wisconsin a warning about how far away from dull, sober discussions of qualifications elections can go. It is a swing state which has bounced between Democrats and Republicans in recent presidential elections, and a win in this election will be read as an indication of the political winds in the nation.

The current court has a 4-3 liberal majority; the 2025 election filled the seat of a liberal justice who retired. This election’s result confirms the court’s liberal direction in a series of important questions likely to come before the court. They include first of all challenges to the current congressional and state election district maps. District lines have been redrawn once since the 2020 census and will likely be challenged again. In addition, while neither candidate has stated views on abortion policy, a case on the state’s abortion restrictions is in the pipeline. Finally, cases dealing with former governor Scott Walker’s public employee union reform and ballot access are on the liberal wish list.

Instead of insulating judicial elections from partisan politics, the off-year elections held in the spring have only focused attention in the state and nation on the race.

https://www.jsonline.com/story/news/politics/elections/2025/03/24/crawford-campaign-leads-ad-spending-inwisconsin-supreme-court-race/82570614007/?utm_source=newsletter&utm_medium=email&utm_term=2025-0324&utm_campaign=Record+Spending+In+Wisconsin+And+A+Potentially+Close+Special+Election+In+Florida 39 https://www.wisbar.org/NewsPublications/Pages/General-Article.aspx?ArticleID=5684 40 https://www.jsonline.com/story/news/politics/elections/2025/03/17/wisconsin-supreme-court-headed-for-recordsmashing-spending-levels/82414645007/ 38

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Pennsylvania Pennsylvania provides another example of how money is influencing state judicial elections.

The cost of state supreme court elections in Pennsylvania are not as high as those in Wisconsin, but it has been rising. Pennsylvania uses partisan elections to select justices who serve ten-year terms. Until they reach the mandatory retirement age of 75, they can run in retention elections, which traditionally had been sleepy, uncontroversial contests, with 30 percent plus margins.

Winning open seats has become an increasingly expensive project. Spotlight Pa, a news organization focused on Pennsylvania state politics, tracked the mounting spending by candidate campaigns and outside organizations, including in-kind contributions.41

Figure 16

Pennsylvania Spending in Supreme Court Campaign, 2023 This year’s race for an open spot on the commonwealth’s high court was the most expensive of all time. All told, at least $22 million was spent by the candidates and their allies. This total includes “in-kind” donations in the form of ads and mailers, and independent expenditures from outside supporters.

Expenditures

In-Kind Contributions

Independent Expenditures

Christine Donohue* 2015

$2M

$3M

Kevin Dougherty* 2015

$6M

$5M

David Wecht* 2015

$4M

$5M

Judith Olson 2015

$1M

Michael George 2015

$1M

Anne Covey 2015

$2M

$934K

Sallie Mundy* 2017

$1M

$2M

Dwayne Woodruff 2017

$381K

Kevin Brobson* 2021

$1M

$2M

$2M

$5M

Maria McLaughlin 2021

$3M

$4M

Daniel McCaffery* 2023

$3M

$11M

$14M

Carolyn Carluccio 2023

$1M

$4M

$2M

$8M

Note: In 2025, there were 3 open seats on the ballot; that year, $1.3 million in independent expenditures was used to oppose Republicans as a state. Here theat money is divided evenly between the Democratic candidates supported.

Pennsylvania Department of State

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The 2023 contest attracted in-state, out-of-state, “dark money,” and interest group funds from trial lawyer associations and unions. More than $22 million—a record at the time for a supreme court election—poured in, mostly spent on ads that depicted the Republican candidate as “deceptive” and “dangerous,” especially on potential changes to the state’s abortion law.42 These special interest groups reveal the importance of money in winning elections.

Pennsylvanians for Judicial Fairness appeared in the spring of 2023. It filed with the IRS for 527 (tax exempt status for a political advocacy organization) but never reported contributions.43 It appeared to consolidate contributions from labor unions and other liberal advocacy organizations.44 Roughly 30 percent of the $6.5 million it raised came from other blandly-named groups such as Pennsylvania Alliance Action that supports progressive causes with funds from undisclosed donors.45 The Commonwealth Leaders Fund, largely funded by billionaire investor Jeff Yass, was the major outside group on the Republican side, spending $2.2 million on ads and mailers.46 The major focus of the organization is school choice. Sometimes described as a libertarian, he or his organization made more than 700 contributions in 2024 to campaigns across the nation, state Republican parties, and advocacy groups.47 With a Democratic victory in that race, the current court is made up of 5 Democrats and 2 Republicans. Three Democrats are up for retention in 2025, and Republicans have launched an unusual vote-no campaign. The Democratic party vows that the retention campaign will have all of the necessary resources to win, and is raising funds by claiming that retention will be a “roadblock to MAGA extremism.”48 The campaign has set up around issues such as the court’s decisions on congressional and legislative redistricting, education policy, and voting laws, with Republicans positioning the campaign around accountability. Should they succeed, the Democratic governor would appoint a justice or justices until the next election in 2027.

The irony is that retention elections emerged in Pennsylvania during the constitutional revision in 1968 as a way to reduce partisanship. After winning in a partisan election and serving a tenyear term, justices running in retention elections could focus on qualifications and their records.

The executive director of Pennsylvanians for Modern Courts, a nonpartisan group that supports merit selection rather than elections noted “The whole theory behind retention elections was that they would be nonpartisan. They would balance out the partisanship of judicial elections.”49

https://www.spotlightpa.org/news/2023/11/pennsylvania-election-results-abortion-supreme-court-spending/ https://projects.propublica.org/527-explorer/orgs/923666004 44 https://projects.propublica.org/527-explorer/expenditures/50910123 45 https://www.mcall.com/2023/11/15/spending-on-pa-supreme-court-race-broke-records-set-precedent-for-outsideinfluence/ 46 https://www.spotlightpa.org/news/2023/10/supreme-court-campaign-finance-pennsylvania-yass-ads-spending/ 47 https://www.opensecrets.org/donor-lookup/results?name=Jeff+Yass&order=desc&sort=D 48 https://www.spotlightpa.org/news/2025/02/judicial-retention-election-pennsylvania-2025-supreme-court-partisan/ 49 https://penncapital-star.com/campaigns-elections/with-three-seats-on-the-ballot-this-years-state-supreme-court-racemay-be-a-different-animal/ 42

43

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North Carolina North Carolina, with its long-standing concern with money in judicial elections, nonetheless has set new state spending records. The state uses partisan elections to select justices. In order to address what appeared to be unseemly amounts of money in these elections, the state tried nonpartisan elections between 2002 and 2016 and public financing of judicial elections. While lawyers and lobbyists continued to be the major sources of individual contributions, those contributions dropped, as did those from parties and candidate committees.50 The 2016 state supreme court election, which created a Democratic majority for the first time in nearly two decades, brought in $5.4 million. Outside dark money groups were active, and the campaign included a first: a YouTube video endorsement of a state supreme court candidate (the Democrat Morgan) by a president (Obama).51 Soon, the total spending in that race would be spent by a single candidate. In 2024, Allison Riggs, the incumbent Democrat, dominated the airwaves, spending over $4.6 million while Republican Jefferson Griffin spent less than half of that.52 In what became a down-to-the-wire race with recounts and legal challenges, the race finally ended with Griffin’s concession in May 2025.

https://www.followthemoney.org/research/institute-reports/stark-contrasts https://www.brennancenter.org/sites/default/files/publications/Politics_of_Judicial_Elections_Final.pdf, p 18 52 https://www.carolinajournal.com/riggs-raised-and-spent-double-what-griffin-did-in-the-nc-supreme-court-race/ 50 51

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Money in Retention Races

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Money in Retention Races Retention races are far less expensive, but even they attract money and advertising. In Kansas in 2025, six of the seven justices were up for retention. Only one group—Keep Kansas Courts Impartial, supported by legal organizations—spent money on the campaign.53 It ran ads in favor of the candidates and the system, which pro-life Republicans have opposed.54 Arizona’s retention election in 2024 was also surprisingly expensive largely due to the abortion issue. After a controversial ruling on abortion rights, Justices Clint Bolick and Katherine King faced an intense campaign against their retention unlike anything in the history of Arizona’s retention system. The National Democratic Redistricting Committee and Planned Parenthood Votes pledged over $5 million dollars to turn voters against the justices. Groups and individuals supporting the justices responded. They raised over $560,000 in total contributions. Investor Jeff Yass alone contributed $200,000 of this total. Since he spread his contributions across the nation, it seems unlikely that he had a particular interest in Arizona.55

https://www.brennancenter.org/our-work/research-reports/buying-time-2022-kansas https://www.courthousenews.com/abortion-foes-seek-ouster-of-5-kansas-supreme-court-justices/ 55 https://www.opensecrets.org/donor-lookup/results?name=Jeff+Yass&order=desc&sort=D 53

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How State Races Became Nationalized

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How State Races Became Nationalized The politicization of judicial elections in Wisconsin, Pennsylvania, and North Carolina reveals that we have entered into a new era in which big money counts and candidates are compelled to announce their party affiliations and pressured to declare how they might vote on a future case before the court.

Through the 20th century, state supreme court appointments, even elections, were typically low-key events. Turnout was low, especially in retention elections. In the late 20th century, the largest worry about money and influence with the elections and appointments had to do with the influence of trial lawyers’ associations, which had obvious, direct interests in judicial appointments.

That changed over the past two decades. State supreme courts are increasingly the final arbiter of political fights. Those issues include passing on state restrictions on abortion, state economic and labor regulations, and creating district maps and election laws. The Dobbs decision returned the regulation of abortion to the states. As a consequence, reproductive rights became a hot-button issue in all state political campaigns, including the election of state justices. Voting rights and legislative districting legal challenges add further fuel to this politicized environment for state courts.

The combination of decades of Voting Rights Act (1965) legislation and legal challenges and rulings and the Covid shutdown-inspired expansion of mail-in and early voting made state supreme courts a battlefield where Congress and even the Presidency might be won or lost.

State legislatures matter in creating new district maps, generated with ever more precise computer simulations to game the best partisan outcomes for both state and national elections.

Challenges to those maps using state or federal laws are routine.

The Republican Party has devoted significant attention to state legislative races since the early 2000s. In view of Republican success, which has aided the party in creating favorable districts, Democrats have been dedicating resources to state government since 2016.

The Democratic Leadership Campaign Committee (DLCC), the States Project, co-founded

by Adam Pritzker, a cousin of the billionaire Illinois governor, and Forward Majority provide money and campaign expertise.56

56

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https://www.nytimes.com/2024/06/12/us/politics/democrats-states-project.html

Together, these groups have vastly outspent the Republican Party’s efforts in the past few election cycles. In 2024, the Democratic Party-aligned groups spent $175 million versus $50 million spent by the Republican State Leadership Committee, which had no additional helper groups. The Democratic efforts to flip state legislatures failed.57 The Democratic State Leadership Committee targets supreme court elections in addition to state legislatures. The state supreme courts can order the redrawing of state and federal legislative districts.

In 2023, the DLCC made a “six figure investment” in Pennsylvania, with the funds trained on a media campaign for the Democratic candidate running to fill a vacancy opened by the death of a justice. The DLCC was joined by a political action committee, Planned Parenthood Votes, which made what was at that time the largest contribution in its history for a state supreme court election.58 The ACLU also campaigned for the Democratic candidate.59 This was for an election that was not pivotal—it did not threaten the Democratic majority on the court. A Republican victory would have merely narrowed it to 4-3.

In Wisconsin, the DLCC celebrated the Democrat’s victory in 2025 by describing it as a win not for the law or justice but for the chance to control the state legislature by redrawing district maps. The election, they noted in a press release, “marks another milestone in the DLCC’s goal of flipping the Wisconsin Senate and Assembly. The DLCC placed this race on our target map due to its major implications on Wisconsin’s fair maps that allowed Democrats to flip 14 seats in the legislature in 2024. Democrats are now within striking distance of majorities in both chambers.”60 That, in turn, will impact Congressional district maps.

In anticipation of the Wisconsin and Pennsylvania elections, DLCC President Heather Williams stated that “Democrats’ ability to win state legislative races and build power in Wisconsin and Pennsylvania hinges on the outcomes of these state supreme court races.” Those races were about power and policy outcomes. Democratic majorities were essential “to ensure state legislative races are run on fair maps and to protect the future of abortion access, voting rights, workers’ rights, and so much more.”61 The DLCC has a non-profit 501(c)(4) affiliate, the State Democracy Action Fund, that provides research and data analysis at the state level. It also spent a six-figure sum in Wisconsin in 2025.62

https://www.nbcnews.com/politics/2024-election/republican-gains-state-legislative-battleground-races-rcna179174 https://penncapital-star.com/campaigns-elections/dlcc-making-six-figure-investment-in-pennsylvania-supreme-courtrace/ 59 https://www.aclu.org/news/reproductive-freedom/whats-at-stake-in-pennsylvanias-supreme-court-election 60 https://dlcc.org/press/release-wisconsin-judge-crawfords-victory-marks-step-forward-in-dlccs-plan-to-flip-thelegislature/61 https://www.followthemoney.org/research/institute-reports/stark-contrasts 61 https://dlcc.org/press/release-dlcc-adds-majority-deciding-wisconsin-and-pennsylvania-state-supreme-court-races-totarget-map/ 62 https://statedemocracyactionfund.org/#work; https://dlcc.org/press/release-dlcc-adds-majority-deciding-wisconsinand-pennsylvania-state-supreme-court-races-to-target-map/ 57

58

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Other national Democratic groups target state supreme court elections, both for open seats and retention. Planned Parenthood Votes and the National Democratic Redistricting Committee (NDRC) teamed up in 2024. With a $5 million budget, they focused ads and resources for canvassing and voter turnout efforts on state supreme court contests in Arizona, Michigan, Montana, North Carolina, Ohio, and Texas. The NDRC has piggybacked its campaign for redistricting, an issue of immense importance to politicians and activists but obscure to most voters, onto abortion rights, which might attract more voter interest.63 The National Democratic Redistricting Committee is a political action committee headed by former Obama administration Attorney General Eric Holder, Jr. Rounding out its work in funding state campaigns are two sister organizations.64 The National Redistricting Foundation, a 501(c)(3) charitable organization, handles litigation, while the National Redistricting Action Fund, a 501(c)(4) (social welfare) also litigates against Republican-friendly maps and organizes activists.65 The National Redistricting Foundation showed $7.3 million in contributions in 2023, while it collected $28.6 million in 2022.66 Both groups should be considered to be dark money groups that are not required to disclose donors.

The Republican counterpart to the Democratic redistricting groups is the National Republican Redistricting Trust, founded in 2017 to counter Democratic programs. Its work consists of legal challenges to Democratic maps and assistance to Republicans on the law and the data essential to drawing maps.67 Meanwhile, the Republican State Leadership Committee’s Judicial Fairness Initiative promised “record investments” in the 2022 cycle. How much it actually raised and spent is unclear.68 The Republican State Leadership Committee also taps into dark money sources.69 The parties and activists expect a return on the money and expertise they provide (in a legal, uncoordinated way). So far, their investments seem to be paying off. According to one study, ideologically committed justices in election states are more likely to cast votes for their parties in redistricting cases.70 The task becomes recruiting and nurturing such justices.

Those justices are unlikely to be punished for such votes. Voters are left mostly in the dark about the national political agenda. While they see countless ads about crime and criminals, mentions of redistricting are rare. The Brennan Center’s archive of ads in state supreme court elections reveals very few ads, all in North Carolina and most having to do with potential racial gerrymandering. Partisan gerrymandering cases are the present and future of state supreme courts.71

https://www.nytimes.com/2024/05/20/us/politics/democrats-state-supreme-courts.html https://www.influencewatch.org/political-party/national-democratic-redistricting-committee-ndrc/ 65 https://redistrictingaction.org/ 66 https://projects.propublica.org/nonprofits/organizations/820738281 67 https://www.politico.com/story/2017/09/29/republicans-redistricting-strategy-2020-243298 68 https://www.rslc.gop/press-releases/rslc-pledges-record-investments-in-2022-state-supreme-court-races; https:// thehill.com/homenews/campaign/594526-gop-group-pledges-more-spending-on-supreme-court-races/ 69 https://www.governing.com/now/state-supreme-court-races-big-issues-big-money 70 https://www.cambridge.org/core/services/aop-cambridge-core/content/ view/76164DC51C76D8995DD942AA908320DF/S2164657025000063a.pdf/redistricting_and_party_loyalty_in_the_ state_supreme_courts.pdf 71 https://www.nytimes.com/2024/05/20/us/politics/democrats-state-supreme-courts.html 71 https://www.brennancenter.org/our-work/research-reports/buying-time-2016-north-carolina ; https://www. brennancenter.org/our-work/research-reports/buying-time-2020-north-carolina 63

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Conclusion: Saving Democracy

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Conclusion: Saving Democracy Many Americans have lost confidence in their state supreme courts. This loss echoes the drop in confidence in American political institutions generally, and the judicial branch in particular.

As state supreme courts become super legislatures, making as well as interpreting law, perhaps voters are correct in wanting their say through elections, armed with information about the party loyalty and positions on issues of potential justices. If voters have reasons to believe that their courts are just another political branch, one with the power to override the legislative and executive, then the appeal of voting for justices that align with their policy and ideological preferences is obvious.

If voters get what they want in elections, they will also get things they do not want, in part because of agendas never made clear to them.

While they disapprove of money in politics, they will get ever-larger sums fueling partisan and ideological campaigns. Judicial candidates are growing less reticent about stating their positions on issues, including questions that are likely to come before their courts.

Abortion and related issues have been the leading edge of campaign ads that take positions and make promises.

Respondents disapprove of special interest involvement in state supreme court campaigns.

Outside groups, some of which will have disclosed their funding and other classic dark money “charitable” organizations, which have revealed their funding, will pump out negative ads. Those groups now account for more than 45 percent of ad spending on state supreme court elections.72 The ads will be both irrelevant to the position and inflammatory. The prospect of potential negative ads in the future might even shape judges’ decisions.73 These races, in short, will be indistinguishable from campaigns for any other office except perhaps for a greater emphasis on vicious criminals.

The advertising not only miseducates voters about the charged duties of state supreme justices but behind these ads is a partisan maneuver to control the courts. Ultimately the goal is to ensure partisan voting districts. Partisan groups dedicated to winning state supreme court races have not kept their goals secret. They have announced their plans and their rationale: state supreme courts can be the key actors in redrawing Congressional district maps and therefore have national significance. National money and technical assistance are good investments if they result in favorable maps in the future.

None of this connects to the purpose of the courts.

72 73

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https://www.brennancenter.org/our-work/research-reports/politics-judicial-elections-2021-2022 https://www.acslaw.org/analysis/reports/skewed-justice/

State supreme courts were not designed to be smaller and more authoritative legislatures.

They preserve the rule of law in a constitutional republic. They can be called upon to make unpopular decisions that nonetheless follow the law. Some of these might occur in criminal cases arising out of errors in trials that appear to let a criminal go free; others in politically or ideologically charged cases. The relatively long terms that justices in most states serve reflect the need for them to be insulated from popular opinion in the interest of following the law.

In the short run, unpopular decisions reduce confidence in courts. Our survey showed that those who explained why they lost confidence in their courts mentioned decisions, state or national, with which they vehemently disagreed. Abortion, likely a waning issue as state laws settle, led the way.

In the longer run, state supreme court justices must follow the law without concern for popularity or public opinion. With a public confidence in the integrity of the courts, and the justices seated on these courts, the rule of law is strengthened, and with it, democracy itself.

State Profiles Virginia Of the states, Virginia is the dullest in terms of controversies. After a brief period in the 1850s when the state elected its state supreme court, it returned to selection by the state legislature in 1870. Partisan wrangling is confined there, and in a relatively evenly divided state, that has meant occasional delay in filling seats. Since the 1980s, numerous episodes of legislative deadlock caused judicial offices at all levels to go unfilled for a time. Because the legislature appoints justices, money is not an issue in Virginia.

Arizona Arizona’s governor makes the appointment of justices from lists generated by a commission.

Chaired by the chief justice, the commission is a mixed group of attorneys nominated by the state bar and approved by the governor and non-lawyers appointed by the governor. All commissioners’ appointments require the consent of the state senate. To bring accountability, the Commission on Judicial Performance Review provides evaluations before justices sit for retention elections. This system, in place since 1974, replaced elections. Justices have largely been retained, although a few controversies have arisen over governors favoring nominees from their own parties.

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North Carolina North Carolina is an election state that has tinkered often with the exact procedures. In recent years those innovations have included switching from partisan to nonpartisan elections (2002) and then back again (2016). Returning to nonpartisan elections is under consideration. Justices serve eight-year terms, and since 2015, incumbent justices run in uncontested retention elections unless disqualified by the mandatory retirement age (72). Campaigns are and have been heated and expensive. As of the third-quarter reports for the 2024 race, which went on to recounts and court challenges, the candidates raised a combined $6.4 million, with the Democratic side depending on out-of-state funds.74

Pennsylvania The Keystone State’s earliest jurists were elected, and after using various appointment systems from 1790 to 1850, the Commonwealth switched back to elections. Since 1968, justices face the voters in competitive elections once; after that they can run in retention elections until they reach the mandatory retirement age of 75. Only one candidate, in 2005, lost a retention election.

Controversies concerning election rules (districting and a 2020 ruling on the disposition of undated or misdated mail-in ballots delivered while counties were in the middle of certifying results) are currently inspiring an anti-retention campaign.75 The most recent open seat set a record for spending on a judicial campaign.

Kansas Since 1958, Kansas has used an appointment system that puts a unique wrinkle on guided appointments. The governor appoints justices with the assistance of a nine-member commission that is dominated by the state bar association. After serving for one year, those justices then stand for a retention election, which are all but automatic. While the court currently has a Democratic-appointed majority, a conservative justice was the top vote-getter in recent retention elections. That may owe to his dissents in recent controversial cases concerning abortion, election rules and district maps, and environmental laws. There is a current effort moving through the legislature to return to the election system used prior to 1958.76

Wisconsin This state selects its seven justices for ten-year terms through elections that are nonpartisan in name only. It is the poster child for expensive, partisan, and issue-driven elections that set spending records via a flood of interest-group and out-of-state money. Wisconsin has elected justices since 1853, and complaints about partisanship and spending are long-standing: the first million-dollar race was in 1999.77 Much of the current spending on campaigns buys advertising, with a heavy dose of negative attack ads.

https://www.carolinajournal.com/riggs-raised-and-spent-double-what-griffin-did-in-the-nc-supreme-court-race/ https://www.spotlightpa.org/news/2023/11/pennsylvania-election-results-mail-ballot-undated-misdated-court-rulingconfusion/ 76 https://sentinelksmo.org/constitutional-amendment-state-supreme-court/ 77 https://captimes.com/news/government/the-wisconsin-supreme-court-s-ugly-politics-explained/article_93b6148e-831811ee-9b37-b735a72dbc2b.html 74

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Data, Methods, Commissioner Biographies

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Data and Methods To measure the relationships between personal traits (e.g., knowledge of selection methods, whether state supreme courts “get it right”) and state judicial-selection methods, a survey of 2,810 adults residing in 49 states was conducted. No respondents resided in Alaska. To ensure that there was useful variation in judicial selection methods in our data set, residents in six states with different methods were oversampled: Arizona, Kansas, North Carolina, Pennsylvania, Virginia, and Wisconsin.

Roughly 300 respondents were surveyed from each of these states.

Exactly 869 respondents resided in the remaining 43 states.

The survey instrument (i.e., questions) is included.

The survey was conducted by Noble Predictive Insights (NPI) as two separate surveys with the same questions: One gathered from a national sample and one available to respondents from oversampled states. The national survey was fielded from January 6 to 13, 2025, while the six state-level surveys were conducted from January 6 to 10, 2025. Responses were collected via online opt-in panel. The panel provider conducted initial screening, followed by NPI’s own screening and quota controls. According to NPI, “Comprehensive quality checks were applied to each data point to ensure sample integrity. Among registered voters, likely voters were identified using additional screening questions.” Responses from both surveys were then collated and combined for statistical analyses.

A series of least-squares regressions were estimated. Each regression equation predicted a different dependent variable, listed in Table 1 respectively as: Model 1: Professed knowledge of judicial selection methods in one’s state (i.e., “Do you know how State Supreme Court Justices are selected in your state?)— coded as “1” for yes, and “0” otherwise.

Model 2: Level of agreement with “My State Supreme Court usually gets decisions right.”

Model 3: Level of agreement with “There is too much money spent on State Supreme Court campaigns in my state.”

Model 4: Level of agreement with “Special interests play too great of a role in the selection of justices in my state.”

Model 5: Level of agreement with “My State Supreme Court is overly partisan.”

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The dependent variables for Models 2, 3, 4, and 5 are coded as follows: “4” for “strongly agree,” “3” for “agree,” “2” for “disagree,” and “1” for “strongly disagree;” with “don’t know” responses excluded. Hence, higher values indicate stronger agreement with the statement.

The explanatory variables in Table 1 are coded as follows: “Election State” – coded “1” for whether justices of a state’s supreme court were popularly elected, partisan or not, for their first term of service (i.e., not including retention elections), and “0” otherwise. Election states include Alabama, Arkansas, Georgia, Idaho, Illinois, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Montana, Nevada, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Texas, Washington, West Virginia, Wisconsin.

“Partisan Elections” – coded “1” for whether justices of a state’s supreme court were elected popularly via party nominations, and “0” otherwise. Partisan-election states include Alabama, Illinois, Louisiana, North Carolina, Ohio, Pennsylvania, and Texas.

“Nonpartisan Elections” – coded “1” for whether justices of a state’s supreme court were elected popularly without party nominations, and “0” otherwise.

Nonpartisan-election states include those listed as “election states” but not those listed as “partisan election” states.

“Non-white” – coded “1” if a person indicated they were not white (question D09 in survey instrument) or Hispanic (question D08), and “0” otherwise.

“Household income” – coded “1” for household incomes below $50,000, “2” for household incomes between $50,000 and $100,000, and “3” for household incomes above $100,000 (based on question D10 in survey instrument).

“Female” – coded “1” if respondent selected “female” (question D03 in survey instrument), and “0” otherwise.

“Education” – coded “1” to “4” with each category representing progressively higher levels of schooling (from question D07 in survey instrument).

“Age (years)” – coded as numbers based on respondent’s birth year (question D05 in survey instrument). Age was calculated by subtracting reported birth year from 2024.

“Ideology: Liberal” – coded as “1” if respondent chose “liberal” for question D11 in survey instrument; “0” otherwise.

“Ideology: Moderate” – coded as “1” if respondent chose “moderate” for question D11 in survey instrument; “0” otherwise.

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The coefficients presented in Table 1 were produced using ordinary least-squares regressions.

Such coefficients may be interpreted directly. For example, from Model 1: Respondents in election states were 0.437 percent less likely to claim to know how judges are selected in their states (as opposed to respondents in all other states). Given the small standard error in parentheses, this difference is statistically different from zero. In other words, given that there are two asterisks (**), there is a less than 5-percent chance that the correlation is due to randomness, or a greater than 95-percent chance that the correlation is due to an actual, underlying cause. Similarly, non-white people were 6.2 percent more likely than white people to claim to know how judges are selected in their states. Respondents with higher incomes, who were men, had more years of education, and who were younger, were all more likely to claim to know how judges are selected. There was no difference in claimed knowledge between political liberals and conservatives, but politically moderate individuals claimed to know how judges are selected about 5 percent less often than political conservatives.

Since the dependent variables for Models 2, 3, 4, and 5 are measured differently from the dependent variable in Model 1, the interpretation of the model results differs somewhat. For example, from Model 2: Respondents in election states had an average agreement score for courts “getting it right” that was 0.309 units lower than respondents’ score in other states.

However, this difference was not statistically different from zero (note that there are no asterisks) and therefore is likely due to random chance. Women had a lower agreement score than men, and both political liberals and moderates agreed less strongly than conservatives that their state supreme courts “get it right.” All other results from the model are statistically indistinguishable from zero or are likely due to random chance.

Similar interpretations may be applied to the results presented in Models 3, 4, and 5.

The following correlations were found to be statistically significant or likely not due to random chance: From Model 3: Residents of states with either partisan or nonpartisan judicial elections were more likely to agree that there was “too much money spent on State Supreme Court campaigns” than residents of states with appointment methods.

From Model 3: Respondents with more years of education or who were older agreed less strongly that there was too much money spent on court campaigns.

From Model 4: Residents in states with nonpartisan elections agreed more strongly that “special interests play too great of a role in the selection of justices in my state” than residents of states with appointment methods.

From Model 4: Respondents who were older or politically liberal agreed more strongly that special interests play too great of a role.

From Model 5: Residents in states with nonpartisan elections agreed more strongly that “my State Supreme Court is overly partisan” than residents of states with appointment methods.

From Model 5: Respondents who were older or politically liberal agreed more strongly that their state supreme courts are overly partisan.

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All standard errors in Table 1, which were used to determine significance levels, are robust to heteroskedasticity. All models in Table 1 include state effects that are not reported in the table.

No observations were particularly important outliers or influential.

Exp. Variables

Model 1: Knowledge of Selection

Model 2: Gets It Right

Model 3: Too Much Money

Model 4: Special Interests

Model 5: Too Partisan

Election State

-0.437**

-0.309

-

-

-

(0.190)

(0.360)

-

-

1.340***

-0.050

0.429

(0.507)

(0.636)

(0.299)

1.093***

1.009*

0.584***

(0.402)

(0.525)

(0.195)

Partisan Elections

Nonpartisan Elections

Non-white

-

-

0.062***

0.038

0.013

-0.001

0.073

(0.021)

(0.043)

(0.048)

(0.040)

(0.050)

0.034**

0.039

0.017

-0.006

0.028

(0.014)

(0.028)

(0.031)

(0.027)

(0.032)

-0.106***

-0.094**

-0.023

-0.031

-0.019

(0.019)

(0.037)

(0.042)

(0.035)

(0.043)

0.070***

-0.009

-0.052**

0.007

0.011

(0.011)

(0.022)

(0.024)

(0.021)

(0.024)

-0.002***

-0.001

0.003**

0.006***

-0.003*

(0.001)

(0.001)

(0.001)

(0.001)

(0.001)

0.014

-0.144***

0.034

0.097**

0.160***

(0.024)

(0.049)

(0.055)

(0.045)

(0.056)

-0.049**

-0.125***

0.008

0.043

0.064

(0.022)

(0.042)

(0.049)

(0.041)

(0.050)

0.739***

3.051***

1.902***

1.907***

2.230***

(0.144)

(0.327)

(0.409)

(0.528)

(0.208)

Observations

2,810

2,096

1,934

2,235

1,791

R-squared

0.073

0.034

0.038

0.049

0.037

State Fixed Effects

Yes

Yes

Yes

Yes

Yes

Household Income

Female

Education

Age (years)

Ideology: Liberal

Ideology: Moderate

Constant

Robust standard errors in parentheses; *** p < 0.01, ** p < 0.05, * p < 0.1.

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Survey Instrument Thank you for agreeing to take this survey—it should not take longer than 10 to 15 minutes of your time to complete. Before we get started, we have a few questions for statistical purposes only.

All your responses will be kept confidential.

SECTION 1 – INITIAL QUALIFIER 1.

Which of the following states do you reside in?

2.

Which county in do you live in?

3.

What is your gender? o Male o Female o Prefer not to answer

4.

Which of the following best represents your age? o 17 or younger o 18 to 29 o 30 to 44 o 45 to 64 o 65 or older

5.

Please select your birth year.

SECTION 2 – LV SCREENER

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1.

Do you happen to be registered to vote, or not? o Yes, I am registered o No, I am not registered

2.

Which of the following political parties are you currently registered to vote as? o Republican o Democratic o Independent/Nonpartisan o Another party not listed o I am not registered to vote

3.

Would you say that you… o Lean Democratic o Lean Republican o Neither

SECTION 3 – RV TRACKERS 1.

Do you believe that your state is on the right track or heading in the wrong direction? o Arizona is going on the right track o Arizona is going in the wrong direction

2.

When it comes to running your state, which political party do you believe would do a better job, in general? o Republicans o Democrats o Neither

3.

Here is a list of some issues facing your state. Please select the top three issues you would say are the most important and rank them on a scale of 1-3.

1

2

3

1

2

3

National defense

o o o

Immigration

o o o

Education

o o o

Gun policies

o o o

Healthcare

o o o

Abortion

o o o

Inflation

o o o

LGBT rights

o o o

Income gap

o o o

Affordable housing

o o o

Taxes

o o o

Something else not listed

Unemployment rate

o o o

Climate change

o o o

4.

___________________________ Not sure

o o o o o o

Do you approve or disapprove of the way your governor is handling his or her job? o Strongly approve o Somewhat approve o Somewhat disapprove o Strongly disapprove o Not sure

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Section 4 – FAV/UNFAV 1.

Here are the names of some people and organizations in the news. Using the grid below, please indicate your impression of each. If you have no opinion or have never heard of the person, you can indicate that too.

Very Favorable

Somewhat Favorable

Somewhat Unfavorable

Very Unfavorable

No Opinion

Never Heard Of

Joe Biden, President

o

o

o

o

o

o

Donald Trump, President-elect

o

o

o

o

o

o

JD Vance, Vice President-elect

o

o

o

o

o

o

SENATOR FROM THIS STATE

o

o

o

o

o

o

JUNIOR SENATOR FROM THIS STATE

o

o

o

o

o

o

GOVERNOR FROM THIS STATE

o

o

o

o

o

o

The state legislature

o

o

o

o

o

o

The state Republican Party

o

o

o

o

o

o

The state Democratic Party

o

o

o

o

o

o

The state Supreme Court

o

o

o

o

o

o

2.

Politically, which of these terms comes closer to how you see yourself, even if both apply to you? o Supporter of Donald Trump o Supporter of the Republican Party o Neither

Section 5 – SUPREME COURT QUESTIONS

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1.

As you know, the Supreme Court of the United States is the final judge on federal Constitutional questions that arise out of federal and state laws, regulations and prosecutions.

How much confidence do you have in the U.S. Supreme Court? o A great deal o Some o Not much o None at all o Not sure

2.

Was there a case that caused you to gain or lose confidence in your state’s judicial system? o Yes o No o Not sure

3.

If yes, what case caused you gain or lose confidence in the state’s judicial system?

4.

Let’s turn to the Supreme Court in your state. State Supreme Courts address controversial issues such as voting rights, economic regulations, parental rights and reproductive rights.

They are chosen by various means in each state—sometimes in elections and sometimes by appointment. Do you know how State Supreme Court Justices are selected in your state? o Yes o No o Not sure

5.

I’m going to read a series of statements about State Supreme Courts. Please indicate whether you strongly agree, somewhat agree, somewhat disagree or strongly disagree with each.

Strongly Agree

Somewhat Agree

Somewhat Disagree

Strongly Disagree

Not Sure

State Supreme Court Justices should have term limits (limits on how many total years someone can serve)

o

o

o

o

o

Special interests play too great of a role in the selection of justices in my state

o

o

o

o

o

My state’s Supreme Court needs greater representation from racial, ethnic, gender and sexual minorities

o

o

o

o

o

In State Supreme Court elections, candidates should declare their political affiliation

o

o

o

o

o

If someone might be appointed as a State Supreme Court Justice, they should declaire where they stand on issues before their appointment

o

o

o

o

o

The religion of a Supreme Court Justice or candidate affects my view of the candidate

o

o

o

o

o

There is too much money spent on State Supreme Court campaigns in my state

o

o

o

o

o

My State Supreme Court is overly partisan

o

o

o

o

o

My State Supreme Court usually gets decisions right

o

o

o

o

o

6.

Do you think State Supreme Court Justices should have mandatory retirement ages? o Yes o No o Not sure

7.

If yes, what do you think the age limit for being a State Supreme Court Justices should be, in your state?

8.

Do you believe State Supreme Court Justices should be elected directly or appointed by elected officials? o Elected o Appointed o Not sure

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9.

How much attention do you pay to State Supreme Court decisions in your state? o A lot of attention o Some attention o Not much attention o None at all o Not sure

10. What news sources do you rely on for information about your State Supreme Court? o Local TV news o National TV news channels (CNN, ABC, CBS, Fox, MSNBC, etc.) o Online national news (The New York Times, The Washington Post, etc.) o Local newspapers o Podcasts o Radio o Subscription-based email newsletters o Social media o Friends and family o I don’t receive news about my State Supreme Court SECTION 6 – DEMOGRAPHICS Now, a few more questions for statistical purposes only before you are finished.

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1.

What is the highest level of school you have completed or the highest degree you have received? o High school or less o Some college (e.g. community college, trade/vocational school) o Bachelor’s Degree (e.g. B.A., B.S.) o Post-Graduate (e.g. J.D., M.D., PhD)

2.

Are you of Hispanic, Latino, or Spanish origin? o Yes (Skip to question 6) o No

3.

Which of the following best describes your race? o White o Black or African American o American Indian or Alaska Native o Asian o Hawaiian or Pacific Islander o Mixed Race o Other race not listed

4.

What is your yearly household income? o Less than $50k o $50k to $100k o $100k to $200K o More than $200K

5.

In politics, do you consider yourself o Liberal o Moderate o Conservative

6.

Do you have children? o Yes, I have children under the age of 18 o Yes, I have children, but they are all at least 18 years old o No, I do not have children

7.

How would you describe the area where you live? o Urban o Suburban o Rural

8.

How long have you lived in **INSERT STATE**? o Less than 5 years o 5-10 years o 11-20 years o More than 20 years o Arizona native

9.

Who do you recall voting for in the 2024 election? o Donald Trump o Kamala Harris o Jill Stein o Another candidate o Not sure

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Commissioner Biographies Michael Bailey General Counsel and Director of Legal Reform Programs Arizona Chamber of Commerce and Industry Michael Bailey is the General Counsel and Director of Legal Reform Programs at the Arizona Chamber of Commerce and Industry, and a Partner in the law firm Tully Bailey LLP. He is the former United States Attorney for the District of Arizona, having been nominated by President Trump and unanimously confirmed by the U.S. Senate in 2019. Prior to his appointment as United States Attorney, Bailey was the Chief Deputy of the Arizona Attorney General’s Office, where he managed more than 450 attorneys representing the State of Arizona across the legal spectrum. He is a graduate of the O’Connor College of Law at Arizona State University.

Alexandra Snyder CEO Life Legal Alexandra Snyder is the CEO of Life Legal, a national nonprofit law firm committed to defending the sanctity of human life from conception to natural death. Alexandra leads Life Legal’s work in pro-life litigation, public policy, and education, advocating for the most vulnerable in both the courtroom and the public square.

She previously served as Legislative Counsel to a U.S. Congressman from California, where she worked on pro-life, bioethics, and international human rights issues. Her vocation to defend human dignity has also led her to direct policy for anti-trafficking organizations, provide pro bono legal assistance to victims of abuse, and serve as Executive Director of a pregnancy resource center.

Alexandra teaches Right to Life and the Law as an adjunct professor at Trinity Law School, where she earned her J.D. She is a member of the California State Bar and speaks nationally on life and human dignity issues.

Alexandra is a proud mother of two grown sons and is deeply committed to building a culture of life grounded in truth, justice, and the Gospel.

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Andrew Gould Attorney Partner Holtzman Vogel Andrew Gould is a partner at Holtzman Vogel and focuses his practice on Appellate, Commercial Litigation and Constitutional Law. Prior to joining the firm, Andrew was a Justice to the Arizona Supreme Court from 2016 to 2021. After retiring from the bench in 2021, he worked as a Senior Counsel for First Liberty Institute litigating religious liberty cases throughout the United States. He also served as a Judge on Division One of the Arizona Court of Appeals from 2011 to 2016 where he authored over 400 opinions, and served as a Judge of the Superior Court in Yuma County for 11 years.

Andrew began his legal career, practicing in the field of civil litigation at two of the largest Phoenix law firms. After several years of private practice, he became a Deputy County Attorney, prosecuting major criminal cases for Yuma and Maricopa Counties. He served as Chief Civil Deputy for the Yuma County Attorney’s Office from 1999-2001.

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Steve Twist Founder and Board Secretary Arizona Voice for Crime Victims Steve Twist is the founder and current board secretary of Arizona Voice for Crime Victims. AVCV runs a free clinic which provides legal representation and social services to crime victims seeking to protect their legal rights in criminal cases.

He served for 12 years, from 1978 to 1991, as the Chief Assistant Attorney General of the State of Arizona.

He is the author of the Arizona constitutional amendment for victims’ rights, which the Arizona voters adopted in November, 1990, and the Arizona Victims’ Rights Implementation Act, which passed the Legislature in 1991.

Mr. Twist has testified often in Congress on the need for a federal Crime Victims Rights Amendment. He is a principal author of the Scott Campbell, Stephanie Roper, Wendy Preston, Luarna Gillis, Nila Lynn Crime Victims Rights Act. The CVRA is codified at 18 USC §3771. His testimony and other selected writings on victims’ rights are available at www.nvcap.org.

He has extensive experience litigating the enforcement of victim’s rights.

He argued the first case in the Ninth Circuit successfully defending the CVRA. (Kenna v Dist. Court) He is co-author of Victims in Criminal Procedure 5th Edition (Carolina Academic Press, 2024), a textbook on crime victim’s rights law. Mr. Twist serves as an Adjunct Professor at ASU’s Sandra Day O’Connor College of Law where he teaches a course on the rights of crime victims.

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