“New-Style” Judicial Campaigns and the Legitimacy of State High Courts

Abstract

Judicial elections in the American states became considerably more complicated with the U.S. Supreme Court's decision in Republican Party of Minnesota v White. That ruling extended free speech rights to candidates for judicial office, allowing them the freedom to announce their views on a variety of political and legal issues. Coupled with growing campaign contributions by interest groups and the increasing prevalence of attack ads, state judicial elections now often appear to be little different from ordinary political elections. This has caused many to worry about the legitimacy of elected state courts inasmuch as their perceived impartiality appears to be at risk from campaign activity. The purpose of this article is to investigate those concerns, relying upon an experiment embedded within a representative national survey. Four hypotheses about the effects of campaign activity on institutional legitimacy are investigated, including the hypothesis that courts differ little from legislatures in how they are affected by campaigning. The analysis reveals that campaign activity can indeed detract from institutional legitimacy, but the culprit seems to be campaign contributions, not policy talk or even attack ads. Generally, cross-institutional differences are found to be minor; the factors affecting judicial legitimacy have similar effects on legislative legitimacy. No support whatsoever is found for the view that the ruling in White threatens the legitimacy of elected state courts.

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