In reality, the decision is likely to have very little impact on the actual conduct of judicial elections, or on how the public views those elections. Here is why.
First, it is not clear that a judicial candidate’s personally soliciting campaign contributions necessarily makes that individual less impartial than a judge who does not personally solicit contributions. Moreover, the Court’s decision only allows prohibitions on judges or judicial candidates directly asking people for contributions. The decision permits other individuals to solicit contributions on behalf of a judge. It also allows the judge access to a list of contributors. If the concern is that campaign contributions will limit impartiality, there are still many ways for that to occur.
Second, it is far from clear that public confidence in judges is compromised when they can solicit campaign contributions. This was a key point in Roberts’ opinion: “Judges…cannot supplicate campaign donors without diminishing public confidence in judicial integrity.”
But political scientists have identified many things that can affect judicial decision-making besides an impartial reading of the law, including gender, race, professional experience and public opinion. Despite these findings, the public still views judges as being impartial, at least compared to politicians in other branches of government. Indeed, Roberts mentions that “[t]he vast majority of elected judges in States that allow personal solicitation serve with fairness and honor.”
Perhaps for this reason, there is little evidence that elections compromise public confidence in judges. Although political scientist James Gibson and colleagues have found that campaign contributions can indeed harm the legitimacy of the judiciary (as well as the legislative branch), Gibson and Gregory Caldeira find that the effect of campaign contributions on legitimacy is highly contingent and depends on people’s preexisting attitudes toward the Court and their expectations of judges. Moreover, Gibson finds that elections actually enhance legitimacy overall. Even if campaign contributions can hurt legitimacy in some cases, other aspects of elections improve popular perceptions of the court.
But maybe direct solicitation of contributions is somehow worse than the mere existence of judicial elections. Roberts claims that many states have “reasonably concluded that solicitation by the candidate personally creates a categorically different and more severe risk of undermining public confidence than does solicitation by a campaign committee.”
To our knowledge, there is no evidence to support this claim. Of course, there is always a possibility that campaign contributions can cause a judge to favor certain donors in court, but this is true regardless of whether the contribution was solicited by the candidate personally. And we don’t know if the public actually distinguishes between a personal solicitation and a solicitation by other means, such as a campaign committee. Even if the public does make this distinction, there is no evidence that the public believes corruption is more likely if the candidate solicits the contribution.
Third, campaign spending in trial court elections, like the one in this case, is exceptionally low. Scholars have found the expensive campaigns that characterize many state supreme court elections have not found their way to trial court elections. These elections remain largely uncontested, uncompetitive, and inexpensive.
With such a low amount of campaign spending in these elections, it is hard to see how the appearance of a conflict would exist, unlike in the Caperton case, where the Court held that campaign contributions could give the appearance of impropriety and thereby mandate the recusal of the judge who received them.
Finally, the big concern in judicial elections of late is the increase in independent expenditures. These expenditures are not affected at all by this ruling.
Ultimately, although some people were surprised by the ruling, it isn’t likely to change judicial elections all that much. The Court may be right to be concerned with the appearance of impropriety associated with campaign contributions to judicial candidates. But the majority failed to recognize that the ban on direct solicitation of campaign contributions may not matter much given that contributions can flow to candidates in other ways. The public may therefore perceive judges and courts no differently.
Chris W. Bonneau and Shane M. Redman are political scientists at the University of Pittsburgh.