Vol. 30 No. 1 (January 2020) pp. 1-5THE BATTLE FOR THE COURT: INTEREST GROUPS, JUDICIAL ELECTIONS, AND PUBLIC POLICY, by Lawrence Baum, David Klein, and Matthew J. Streb. Charlottesville, VA: University of Virginia Press, 2017. 184pp. Cloth $45.00. ISBN: 9780813940342.
Reviewed by Douglas Rice, Department of Political Science, University of Massachusetts Amherst. Email: drrice@umass.edu.
In one of the most expensive elections for a seat on a state court of last resort in the nation’s history, Sue Bell Cobb became the first woman to serve as Chief Justice of the Alabama Supreme Court. Reflecting on her discomfort with the campaigning and electioneering that brought her to office, the former chief remarked, “Donors want clarity, certainty even, that the judicial candidates they support view the world as they do and will rule accordingly. To them the idea of impartial and fair judges is an abstraction. They want to know that the investments they make by donating money to a candidate will yield favorable results” (Cobb 2015 p. 59). While a rich and growing literature connects public opinion with the behavior of judges across different forms of judicial selection, far fewer connect the dots between donor mobilization, campaign outcomes, and legal outcomes.
In THE BATTLE FOR THE COURT: INTEREST GROUPS, JUDICIAL ELECTIONS, AND PUBLIC POLICY, Lawrence Baum, David Klein, and Matthew Streb come together to provide a path-breaking chronicle of these connections, from court decisions to group mobilization to campaign outcomes. Focusing on personal injury law and policy at the Supreme Court of Ohio, the authors intricately detail the connections between the decisions of justices, the reactions of business, groups, and others to those decisions in subsequent judicial elections, and the implications of these reactions for the subsequent direction of the court on that policy. Traversing the terrain across each of these separate junctures provides a unique and particularly insightful perspective on the life of the law in states with elected judges. Though the authors take care not to stake a position in the grand debate over how best to select judges, the contribution of the study provides a powerful new entry in the literature and something that advocates of judicial elections must wrestle with. The authors find that as the Supreme Court of Ohio moved policy counter to powerful, pro-defendant interests, those interests mobilized to replace unfavorable judges with those who would be favorable. In general [*2] they were quite successful at ensuring that replacement, and in time the court came to reflect the policy preferences of those powerful interests. Perhaps most importantly for those wrestling with whether elections might ensure accountability, the authors find that voters are — to an extent that is almost remarkable, in this reviewer’s opinion — unaware of the underlying reasons for mobilization and the tort law stakes of the election. Taken together, the authors demonstrate convincingly that, in the context of the new-style judicial campaign, policy outcomes outside the view of a typical voter can precipitate wholesale changes in the membership of the court, and concrete changes in legal development.
This argument motivates the structure of the book, which is a quick read. A brief introductory chapter contextualizes the work within existing judicial elections research and justifies the choice of studying judicial politics through the lens of tort outcomes on the Supreme Court of Ohio. The three subsequent chapters serve as the analytical backbone of the book, with each addressing a different link in the chain of influence that Baum, Klein, and Streb seek to unravel. Though the book is short, the structure of the book combined with concise writing packs a serious punch. Each chapter makes a clear and analytical contribution to the overarching argument. The first demonstrates shifts in the court’s favor towards business interests as a function of changes in the court’s membership; the second connects changes in favorability towards business interests to mobilization of interest groups in the election; and the third and final analytical chapter then connects mobilization with voter behavior, and voter behavior to the composition of the court, bringing us full circle. The focus on tort policy for a single state court — in a genre often marked by comparing variation in more visibly controversial policies like the death penalty across varied forms of judicial selection in the states — may initially bring pause to some, but the appropriateness and brilliance of that choice becomes clear as the authors navigate this complex chain.
In Chapter 1, the authors provide a rich history of the Ohio’s tort policies, with particular attention to the policies coming forth from the Supreme Court between 1973 and 2012. The chapter offers a combination of both rich, in-depth, descriptive analysis of the course of tort law and policy over four decades in the state of Ohio and an impressive and novel quantitative analysis of justice votes. The analyses persuasively demonstrate five eras in the court’s doctrine, with each era corresponding to large increases (1973-1980, 1985-1992, 2003-2012) and decreases (1981-1984, 1993-2002) in the proportion of pro-defendant outcomes in tort cases. [*3] Importantly, these changes closely parallel changes in the court’s membership. In order to rule out changes as a function of threatening electoral environments rather than replacement, the authors conduct a series of analyses and comparisons of voting behavior, none of which provides evidence of consistent influence of electoral pressures. Therefore, taken as a whole, the chapter demonstrates a cyclical pattern of expansion and contraction in the openness of tort policy, with those cycles a function of changes in the actual composition of the court.
Given the evidence that changes in tort policy arise from changes in the composition of the court, Chapter 2 proceeds to consider the mobilization of groups in judicial campaigns in response to the policies emerging from the court and the specific electoral contexts of individual races and elections. The story that emerges is straightforward: business groups respond to the eras of pro-plaintiff outcomes and negative tort environments by mobilizing their efforts to replace pro-plaintiff candidates with pro-business candidates, with that spending particularly heightened in contexts where the majority of the court hangs in the balance. The growth of new-style judicial campaigns initially means many of these battles over court seats were fought with business groups on one side, opposed by trial lawyers and labor organizations. The decline of those labor organizations, however, precipitates a decline in the strength of the forces opposing the pro-business interests. As a result, the Supreme Court of Ohio has settled into a period where it was ruled by large pro-business majorities for most of the 2000s.
In Chapter 3, the authors transition from the efforts of groups to the effect of those efforts on election outcomes and the behavior of voters. Having documented changes in the court’s stance on personal injury law over time, and the concomitant group mobilization to correct the course the court is taking, the authors in this chapter are interested in whether and how that mobilization influences voters, who of course are in the end responsible for the composition of the court. The authors find stark evidence that campaign spending and contributions by outside organizations increase the vote shares of the judicial candidates in their analyses. If the authors had stopped here, one might take to heart that groups had mobilized voters to kick out candidates who were not representing the interests of those voters. Yet while outside spending motivated in large measure by tort policy decisions yields increased vote shares for candidates, the authors find — perhaps more alarmingly — that voters do not widely recognize their votes as being about tort law; instead, the overall vote shares appear plausibly to be connected to differences in name recognition, [*4] shaped in large measure by campaign efforts. Campaign advertising rarely mentioned or discussed tort law, whether by candidates or outside groups, and when tort law was mentioned, it was only in the most indirect of ways. Likewise, impressive and extensive survey data across the entire time span suggests that the issue was likewise never much on the minds of voters. Mobilized groups largely achieved change not by drawing voters’ attention to policies the group disliked, but rather by just drawing attention to their preferred candidate.
Chapter 4 offers a relatively brief conclusion, in which the authors situate their findings within the broader debates over methods of judicial selection. Though they do not stake any strong positions in this contentious arena, the authors highlight the normative complexities their study introduces for advocates of judicial elections in particular. The lack of partisan affiliation on the general election ballot in Ohio’s nonpartisan judicial elections means voters are without one strong cue they might rely on in making their selections; in that absence, name recognition seems particularly significant, and the increased spending of groups can enhance name recognition. Were it to be occurring on both sides equally, the advantages in name recognition would accrue equally, and both pro-plaintiff and pro-defendant forces would be resolved by — one would hope — something related to the preferences of the voters. Instead, the imbalance in spending, with business dominant in the past decade, has yielded an Ohio Supreme Court overwhelmingly tilted in favor of business interests. More disconcerting, although the spending has been motivated by tort policy, the choices of voters have not been connected to that issue; rather, tort policy is only addressed indirectly if at all during these campaigns. Thus, the composition of the court and the direction of all policy emanating from it is structured in large measure by tort policy, but with little to no connection or even recognition from voters that this is the area structuring their court. In the end, as the authors make clear that whether or not you believe this is a positive outcome depends on where you stand on the premises about the role of courts in representative democracies.
In all, Baum, Klein, and Streb provide a major new entry in the judicial behavior literature, and one that is particularly salient given the growth of new-style judicial campaigns. Indeed, some of the broader legal and political importance of the research unfortunately escape discussion at the end; in particular, the study signals that the decline of unions as a countervailing force in judicial campaigns yields a playing field where business interests dominate, with stark implications for policy outcomes. That this [*5] manifests mostly in down-ballot races like judicial elections presents a potentially dire picture. Further, the authors never really explore the ramifications on other policies of changes wrought in the composition of the court as a function of tort policy. One can reasonably assume the direction of the law in the state moves in concert with the tenor of the court’s preferences on tort; understanding and demonstrating the extent to which this permeates the overall direction of the court would lend even greater credence to the importance of the work.
Yet these are minor quibbles. That the authors could have sold even more broadly the importance of their study is a testament to the exceptional quality of the work and its contribution. The argument and the evidence, as well as the complexity they introduce, offer a critically important new direction in the study of judicial selection.
REFERENCES:
Cobb, Sue Bell, “I Was Alabama’s Top Judge. I’m Ashamed by What I Had to Do to Get There.” POLITICO MAGAZINE. March / April 2015.
© Copyright 2020 by the author, Douglas Rice.
