'New-Style' Judicial Campaigns and the Legitimacy of State High Courts: Results from a National Survey

Abstract

Institutional legitimacy is perhaps the most important political capital courts possess. Many believe, however, that the legitimacy of elected state courts is being threatened by the rise of politicized judicial election campaigns. At least three features of such campaigns, the argument goes, are dangerous to the perceived impartiality of courts: campaign contributions, attack ads, and policy pronouncements by candidates for judicial office. By means of an experimental vignette embedded in a representative national survey, I investigate whether these factors in fact compromise the perceived impartiality of courts. The survey data indicate that campaign contributions do indeed lead to a diminution of legitimacy, in courts just as in legislatures. The use of attack ads detracts from legislative legitimacy, but not from the legitimacy of courts. Most important, however, policy pronouncements, even those promising to make decisions in a certain way, have no impact whatsoever on the legitimacy of courts and judges. Thus, this analysis demonstrates that legitimacy is not obdurate and that campaign activity can indeed deplete the reservoir of goodwill courts typically enjoy in the United States, even if the culprit is not the free-speech rights of candidates for state judicial office.

Keywords: Republican Party of Minnesota v. White, Judicial Elections, Campaigning, Attack Ads, Campaign Contributions, Policy Talk

JEL Classification: K10, K40, K41, K42