The explosive growth of spending on judicial elections
Published January 27, 2022
In “The Politics of Judicial Elections, 2019-20,” Brennan Center for Justice experts explain how and why special interests are spending more than ever on state high court races
[Editor’s note: In 2020, North Carolina witnessed the most expensive Supreme Court election in state history, with more than $10 million in total spending on a trio of races. As a new report from researchers Douglas Keith and Eric Velasco at the Brennan Center for Justice reports, however, this was far from an aberration. Indeed, North Carolina’s experience was part of a rapidly growing national trend that both impacted several states, and seems certain to expand in the coming years. The following is from a summary of “The Politics of Judicial Elections, 2019-20.” Click here to down load and explore the full report.]
In 2019–20, state supreme court elections attracted more money — including more spending by special interests — than any judicial election cycle in history, posing a serious threat to the appearance and reality of justice across the country.
Thirty-eight states use elections to choose the justices who sit on their highest courts, which typically have the final word in interpreting state law. Over the past two decades, the Brennan Center has tracked and documented more than $500 million in spending in these races. Our analysis finds that the 2019–20 election cycle was the most expensive ever (adjusted for inflation). In fact, no other cycle comes close to the nearly $100 million that big donors and interest groups spent to influence the composition of state supreme courts in 2019–20.
This unparalleled spending speaks to the power and influence of state supreme courts, which often fly below the public’s radar. While voters were at the polls on Election Day in 2020, for example, the Missouri Supreme Court announced that it would not hear Johnson & Johnson’s appeal of a $2 billion verdict against it in a products liability suit. Massive stakes like these, for both business interests and trial lawyers, are what fueled some of the first high-cost judicial races two decades ago.
The current political moment only heightens the stakes. In 2020 alone, state supreme courts ruled on everything from ballot access and challenges to election results to governors’ emergency orders concerning the Covid-19 pandemic. Looking ahead, state courts are playing a crucial role in the ongoing redistricting cycle, including resolving disputes about racial discrimination and partisan gerrymandering and even drawing electoral maps in some states.
The 2019–20 election cycle, however, was less an aberration than an escalation. A newly enlarged conservative majority on the U.S. Supreme Court, for example, only makes it more likely that state courts and state constitutions will be a focal point as an alternative venue for protecting rights and resolving high-profile disputes. Going forward, more people and more interest groups — many with deep pockets — will almost certainly be paying close attention to who sits on these courts and how they reach the bench.
* State and national spending set new records. This cycle set an overall national spending record of $97 million, 17 percent higher than the previous record set in 2004 (adjusted for inflation). It also nearly doubled the record for spending in a retention election, in which a sitting justice stands for an up-or-down vote rather than face an opponent, with a $9.9 million election in Illinois. State spending also hit new highs. North Carolina saw its most expensive state supreme court race ever, as did Wisconsin in 2019 — before breaking that record again in 2020.
* Outside special interests spent more than ever. Interest groups set another record this cycle, spending an estimated $35 million on ads and other election activities, independent of any amounts they contributed to the candidates themselves. This peak surpassed the previous high-water mark set in 2015–16 and more than doubled interest group spending in every prior cycle. Interest groups accounted for 36 percent of all spending in 2019–20 and spent more money than the candidates themselves in Michigan and Wisconsin. Interest groups on the left came closer than they have in previous cycles to matching those on the right, spending $14.9 million compared to $18.9 million by conservative groups.
* The biggest spenders included both long-time players and newcomers. As in other recent cycles, the Judicial Fairness Initiative (JFI) of the Republican State Leadership Committee (RSLC) was active in the most races, spending $5.2 million across five states. At least $1 million of the RSLC’s budget came from the Judicial Confirmation Network (also known as the Judicial Crisis Network), the dark money group that also spent millions to put Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett on the U.S. Supreme Court and that has perennially been one of the biggest spenders in state supreme court elections. But new groups entered the fray as well: in Illinois, two in-state billionaires funded $5.9 million in spending by Citizens for Judicial Fairness (CJF), and in Texas, in-state business interests, many from the oil industry, fueled $4.5 million of spending by the newly formed Judicial Fairness PAC.
At a moment when our democracy is being tested, it is crucial to ask whether modern judicial elections leave state supreme courts equipped to play their vital constitutional role. Courts will need the public’s trust to effectively counter antidemocratic forces, yet this uptick in spending gives the public little reason to trust that courts are independent of big donors, or any different than the political branches of government. Indeed, research suggests that election spending influences judicial decision-making — and specifically, that judges up for reelection are more likely to rule in favor of their donors and supportive political parties.
States have a wide range of tools to mitigate the harms documented in this report, including eliminating supreme court elections or limiting justices to a lengthy single term in office, providing judicial candidates with public financing, strengthening disclosure rules, and adopting recusal and ethics reforms. The 2019–20 cycle underscores that the challenges posed by modern supreme court elections are not going away — and that the need for action is urgent.