The Campaign Trial
The true cost of expensive court seats.
In 1920s Chicago, it was widely known that Al Capone and his associates had bribed so many public officials that "justice" was available only to the highest bidder. Even when justice was genuinely served, a perception of pervasive corruption undermined public confidence that the rule of law prevailed. Today, a similar confidence problem is brewing in courts around the country. And in Illinois, the appearance of South Side Chicago "justice" did not go away. It just moved to Springfield.
Today, the U.S. Supreme Court declined to hear the case of Avery v. State Farm Automobile Ins. Co.,an appeal out of the Illinois Supreme Court.Avery is the fallout from the most expensive state judicial campaign in U.S. history: the 2004 race for a seat on the Illinois Supreme Court. In that race, Illinois Appellate Judge Gordon Maag and his opponent, then-Circuit Judge Lloyd Karmeier, combined to raise $9.3 million in political contributions—nearly double the previous national record for any state judicial election.
The context of that campaign, and the events that followed the election, demonstrate the tension between expensive judicial elections and public confidence in our courts. Longtime Supreme Court analyst Lyle Denniston neatly summarized the ethics component of Avery as follows: "Should an elected judge, who accepts large campaign donations, sit on a case that directly affects the financial or business interests of the donors and their associates? Put as an ethical question, the answer would seem to be obvious: No." Sometimes, however, ethics alone do not suffice to protect constitutional rights. By passing on Avery,the Supreme Court missed a golden opportunity to clarify the protections required when politics and constitutional rights collide in the courtroom.
In May 2003, the Supreme Court of Illinois heard oral arguments in Avery. The dispute involved a class action against State Farm on behalf of 4.7 million policyholders in 48 states. The appeal was not decided until after the November 2004 election. In other words, the appeal was pending before the Supreme Court of Illinois, and had been for over a year, by the time of the 2004 campaign. The stakes in Avery were hardly trivial. State Farm's appeal sought to overturn a $1 billion lower-court verdict, including $456 million in contractual damages.
Illinois lacks campaign contribution limits. As a result, the $9.3 million raised by Karmeier and Maag did not represent hundreds of thousands of $20 checks from Aunt Gladys and Uncle Merle. Rather, the sum largely represented contributions from frequent litigants in the Illinois courts. And State Farm more than lived up to its slogan. "Like a good neighbor" the company was indeed "there" for Judge Karmeier, who received more than $350,000 in direct contributions from its employees, lawyers, and others directly involved with the company and/or the case. Karmeier got an additional $1 million from larger groups of which State Farm was a member or to which it contributed. As is often the case, he won both the fund-raising battle and the election.
Although Karmeier himself described the fund raising as "obscene," his concern for appearances waned almost immediately upon election. Once seated on the Illinois high court, he refused to recuse himself from the Avery appeal. He then cast the deciding vote on the breach of contract claims, overturning that verdict against State Farm. The public, not to mention the opposing litigants, could be forgiven for questioning whether justice was truly served.
Was Justice Karmeier's decision legitimate, well-reasoned, unbiased? Very possibly yes, but we will never know. Overshadowing the merits of his decision is a single stark fact: Without Karmeier's vote, State Farm would have faced further proceedings on claims valued at up to $456 million. That's either a coincidence or an impressive rate of return on State Farm's investment. Which of the two it was is almost irrelevant—especially where a correlation between a contributor and a decision can't be known. In either case, the cost to the courts themselves is immeasurable.
Thirty-eight states, including Illinois, elect their supreme courts. Recent studies of judicial elections indicate that the trend toward high levels of judicial-campaign fund raising in the states began in the late 1990s. During the 1999–2000 cycle, state supreme court candidates raised $45.6 million—61 percent more than just two years earlier, and more than double the amount raised in 1994. Nine states broke aggregate candidate fund-raising records in the 2003–04 election cycle. This explosion in fund raising is not a coincidence. In 2003-04, 35 of 43 high court races were won by the candidate who raised the most funds; that's a success rate of 81 percent.
The high price of winning, however, falls hard on the public. Evidence shows a steady decline in public confidence in fair courts. Polls show that 76 percent of Americans believe that campaign contributions have at least some impact on judges' decisions in the courtroom. Far more worrisome? The fact that nationally, judges now share this view: According to a 2002 written survey of 2,428 state lower, appellate, and supreme court judges, nearly half the judges surveyed themselves believe that campaign contributions influence judicial decisions. Not even the judges believe their colleagues consist only of "Untouchables."
The statistics illustrate that the public intuitively knows what constitutional theorists strive to prove—that judicial independence matters. Elected legislators are expected to serve interest-group constituencies. They are expected to build coalitions; to promise outcomes; and to be held accountable for those promises. The representative branches function best when officials are lobbied by contributors and non-contributors alike. But judges—including elected judges—are different. They function best when "lobbied" not at all, or only within the adversarial process and on the basis of law. Judges are accountable for the fundamental American promise of fair trials before impartial arbiters. Therein lies the tragic consequence of money's increasing influence in judicial elections. In the long term, we all suffer—including interest groups—when any decision reinforces suspicions that the biggest donor, and not the best case, wins.
James Sample is associate counsel in the Democracy Program at the Brennan Center for Justice at NYU School of Law. (The Brennan Center, along with the Campaign Legal Center, filed an amicus brief on behalf of 12 organizations urging the Supreme Court to grant review in Avery.)
Photograph of gavel on the Slate home page by Henryk T. Kaiser/Index Stock Imagery.