The Semisovereign Courts: Explaining the Constraining Capacity of Judicial Retention Mechanisms
Open AccessExplaining the Constraining Capacity of Judicial Retention Mechanisms Judges are actors in a complex political system interacting with the other branches of government, with litigants, and rendering decisions that have sweeping implications for notions of privacy and freedom. However, across American states judges are subject to varying selection and retention mechanisms ranging from appointments to elections. The politics of judicial selection - and its impact on judicial behavior - is central to debates about judicial independence, the administration of justice, and fairness within the court system. Selection and retention systems influence to whom judges are beholden and the extent to which courts can make decisions free of exogenous constraints. This dissertation seeks to answer: do retention mechanisms shape judicial behavior? Herein I explore and explain the ways in which judicial retention influences judicial behavior. Comprised of three essays, each assesses different ways retention mechanisms influence inter-institutional interactions and court behavior. Essay one explores how retention mechanisms insulate courts from legislative sanctions. Judicial authority rests on the willingness of the other branches of government to acquiesce to court decisions. However, fear of legislative reprisal - whether actual or perceived - may limit a court's willingness to oppose government policies. Using an original dataset of bills introduced in state legislatures that address the powers and functions of state judiciaries I explore what motivates legislative retaliation against courts. Building on previous theories and empirical approaches, I show that modes of retention provide judges and courts with differing degrees of insulation by altering the oversight dynamics between courts, legislatures, and the electorate. Essay two complements the previous essay by investigating the use of judicial review by state supreme courts. Extant research has found that that electoral forces influence judicial behavior. Yet, these studies fail to answer whether retention mechanisms affect judicial willingness to challenge actions taken by the coordinate branches of government. Although some systems may produce judges who are more responsive to public opinion or invite more dissents, do judicial elections, which require campaigning and fund raising, substantively compromise a court's capacity to act as a check on the government? I argue that a court's capacity to use judicial review - rendering decisions that invalidate actions of the legislative or executive branch - is a central measure of its independence as a political institution. Courts that frequently challenge other branches' actions can claim a higher degree of independence. My results find that the use of judicial review by state high courts does not vary by retention, thus challenging a common assertion that judicial elections undermine a court's independence and willingness to challenge the coordinate branches of government. The final essay looks at how state high court judges view each other, given retention mechanisms. By exploring state high court citations to each other's precedent, I show that state courts of last resort are embedded in lateral legal communities. My findings suggest that state courts of last resort are more likely to cite others that are regionally and ideologically proximate. Moreover, my results uncover the important ways in which retention mechanisms shape cross-court citation behavior. Overall, these essays add to the public dialogue by offering new insights into how judges and legislators interact and respond to each other given varying political and electoral forces constraining judicial behavior. Previous research examining selection and retention mechanisms tends to afford them little role in influencing court outcomes. My approach offers a broader analytical reach to explain state judicial decision-making. These finding show that modes of retention influence a court's autonomy from legislative oversight and play an important role in structuring inter-institutional dynamics.
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