The United States’ unique practice of electing judges is a travesty of justice in countless ways: Pressured to gratify voters’ desires rather than uphold the law, elected judges are more likely to impose unduly harsh sentences and condemn defendants to death; less likely to rule against the moneyed interests that financed their elections; and prone to disregard politically unpopular groups’ civil rights. It’s no surprise, then, that a new study commissioned by the LGBTQ advocacy group Lambda Legal has now confirmed what any casual observer could surely intuit: Elected judges are also less likely to rule in favor of gay rights than their unelected counterparts.
The study—led by Anthony Michael Kreis, a professor at Chicago-Kent College of Law (and a Slate contributor), and written up by Lambda attorney Eric Lesh—examined 127 decisions from state Supreme Courts since the U.S. Supreme Court’s 2003 decision in Lawrence v. Texas. Kreis’ findings were stark: The more political a judge’s path to the bench, the less sympathy he or she had for LGBTQ rights claims. State Supreme Court justices elected through partisan elections—i.e., running as Democrats or Republicans—voted to affirm LGBTQ rights just 53 percent of the time. Justices elected through nonpartisan elections supported LGBTQ rights 70 percent of the time. Justices who were appointed but then faced an uncontested retention election voted LGBTQ rights claims 76 percent of the time. And finally, appointed judges with either lifetime tenure or the possibility or reappointment supported LGBTQ rights 82 percent of the time.
I asked Kreis why elected justices might be so disproportionately skeptical of LGBTQ rights claims. He told me conservative judges appeared to be “hypersensitive” to the views of their voting base, leading to an “amplification effect” of anti-gay ideology in their rulings. Kreis noted that liberal judges elected to the bench also tended to be more favorable toward LGBTQ rights than their nonpartisan colleagues. But the “amplification effect” was more pronounced for conservatives than for liberals—“maybe,” Kreis told me, “because they’re more afraid of GOP primary voters that Democratic judges are of the Democratic Party base.”
Lesh agreed that the amplification of conservative ideology among right-leaning judges in LGBTQ rights cases was perceptible and disturbing. But he told me that there’s no easy solution to this problem: The root evil here is, rather obviously, the practice of electing judges in the first place.
“Judicial elections are putting LGBT equality—and our country’s very democratic principles—in increasing danger,” Lesh said. “It is time to stop putting our rights at risk by continuing the practice of electing state judges. It may not sound sexy, but progressive legal organizations and social justice groups really need to champion judicial selection reform efforts to ensure judicial independence and equal access to justice for everyone.”
Coincidentally, the peril that elected judges pose to LGBTQ rights was on display just days after Lambda released its study. Last Friday, the Alabama Court of the Judiciary suspended Alabama Chief Justice Roy Moore for the remainder of his term in response to his anti-gay activism.* Moore, who once described homosexuality as an “inherent evil” in an opinion, urged probate judges to ignore a 2015 federal court decision invalidating the state’s same-sex marriage ban. A federal judge then explicitly ruled that probate judges must provide marriage licenses to same-sex couples. In response, Moore issued a letter ordering probate judges to stop issuing marriage licenses to same-sex couples. Two months later, he wrote a bizarre opinion calling the Supreme Court’s same-sex-marriage decision “tyrannical” and “immoral” and declared that neither he nor any other judge was bound to follow it. The court unanimously concluded that this misconduct had violated the integrity of the judiciary and brought “the judicial office into disrepute,” requiring suspension.
Currently, members of the court are appointed by different branches of the state government. In response to the Moore investigation, the Alabama Republican Party declared that court members should now be put up for election.
* Correction, Oct. 7, 2016: This post originally misstated the body that suspended Moore.