James L. Gibson
Michael Nelson
The book, "Judging Inequality: State Supreme Courts and the Inequality Crisis," is based on a study of every state high court and nearly 6,000 decisions they handed down on issues including minority and workers' rights between 1990 and 2015. The authors found that some states take substantially different paths on problems around inequality, which means that where a case is litigated can have a large influence on its outcome.
Gibson and Nelson also discover that almost a majority of high court justices who stand for election actually end up on the bench through interim appointments following retirements. This offers incumbency advantages once a judge appears on the ballot, which the authors say serves as another example of how intertwined politics and the judiciary are.
"The biggest conclusion is that these courts are simply too important to be allowed to be independent, and governors know that," Gibson told Law360. "Governors and legislatures will go to great lengths to make sure that like-minded justices go on the bench and therefore don't damage policy objectives of the government."
The implications are profound, according to the authors.
"I don't think people realize that the minoritarian half of democracy is very much at risk today," Gibson said. "If these courts are not independent, then who is going to protect the rights of the unpopular and minorities?"
In an interview, Gibson and Nelson shared more takeaways from their research, why state supreme courts deserve more attention and what questions are still left unanswered. The interview has been edited for length and clarity.
What was the motivation behind taking a deeper look at the state supreme courts and how they can impact inequality across the U.S.?
Nelson: It seemed like there had been a ton of attention at the federal level to the role that Congress and the president has played with regard to inequality. And it struck us that courts do a lot; there's an equal protection clause to the Constitution and we should be paying attention to what courts do. And at the same time, we were struck by the fact that state courts decide so many more cases than federal courts, and through the police powers have such broader jurisdiction to address the sorts of issues that really matter with respect to inequality, that really attention was missing both at the state level and the court level.
The stated objective of this book is to explain why some state supreme courts have been more likely to favor equality than other courts, accounting for different variables. What were your main findings?
Nelson: One of the most important ones is the fact that state supreme courts really mirror the partisan composition of the legislative and executive branches in a state. It's not the case that we should expect to look to these courts as guardians of rights that are going to take positions that are a lot different than what the legislature and the executive will do, because in fact most of these judges have to stand for election. And almost a majority of them, even if elected, were appointed to their positions. It means they're going to do the same sorts of things that the legislature and executive are going to do.
Gibson: In states like Minnesota, judges are supposed to be elected by the people, but what we discovered is a pattern of strategic resignations. Judges retire prematurely, which allows a governor to appoint a replacement and then that replacement stands for election, but the ballot indicates who the incumbent is. That generates enormous advantages. Something like 90% of elected judges in Minnesota and Georgia initially got to the high court not by election but by appointment of governor.
The courts are too powerful for state governments not to exert every effort they can to get ideologically similar people on the state supreme courts. Our conclusion is that they're quite successful, generally speaking, at doing so.
This book is based on a study of more than 6,000 cases between 1990-2015, which found that about half favored equality and the other half favored inequality. What types of cases were you assessing?
Nelson: There are three overarching issue domains that the 6,000 cases represent. One is generally the question of minority rights, which can be LGBT, access to the ballot. The second one is worker rights, such as employment at will litigation, which is turning out to be extremely important with COVID-19 and all kinds of other things. The third category is access to justice, and that includes things like class actions, attorneys fees and so on.
What were your takeaways on the findings about courts and whether they handed down decisions that more often favored equality versus more often opposed it?
Nelson: If you look at the variation across the states, you have states like New Jersey where you have an extraordinarily high percentage of cases decided in a pro-equality direction, to states like Texas, where the opposite is true. It really underscores the fact that you've got 50 state legal systems and 50 different constitutions. When you look on average, things are basically a coin flip, but when you get down to any particular state, it may still be a coin flip but some of those coins are pretty heavily weighted.
An important piece of this subject is the great attention on the U.S. Supreme Court, which you note decides less than 100 cases per year, making the state high courts very influential on many matters. This is something that seems to not have as much awareness as you'd probably hope. Why do you think that is?
Nelson: When you go back and think about what people learn in elementary school, the thing they learn is about the Supreme Court. I teach a class at Penn State and I just talked about the state courts. I think most students hadn't even thought about the fact that their states have supreme courts. People know that there are local courts, but the fact there's a whole parallel legal system — it's just not something people think about. And so a lot of these courts can operate under the radar.
Gibson: That's true, but It's changing like crazy. One could argue that these courts, for instance the Pennsylvania Supreme Court, had a gigantic impact on the outcome of the 2020 presidential election. Most of the litigation on electoral conflicts is at the state level. It's our guess that in 2024, it's entirely conceivable that these courts will determine who's going to sit in the White House. If the election is close, these are the courts who are going to tell us who is going to be president.
What are some other developments in the news today that signify how influential state supreme courts can be?
Gibson: Abortion.
Nelson: Especially if the Supreme Court ends up gutting Roe v. Wade, what happens isn't that abortion automatically becomes illegal everywhere, it's that states have the opportunities to provide those rights to their citizens under their constitutions. When state supreme courts make decisions that are based entirely on state law, they can provide protections that are above what the federal government provides.
What's next for this project; what questions did this book produce that you're interested in?
Nelson: To me, one of the biggest questions is looking at the difference between how these institutions operate in practice versus how they look on paper. We find in the book that a lot of judges in states that elect their judges, the judges actually get appointed to their positions. And there is vast variation in what these elections actually look like. States like Ohio, Michigan have very well-funded state supreme court races. In other states, the elections are so weak that nobody ever loses their job. Understanding differences in how these elections work and how that translates into their decision-making is a huge unanswered question.
Gibson: We document a dramatic increase in conservative state supreme court justices from 1990-2015. In 1990, there was liberal dominance; in 2015 it's really about 50-50. Especially given their importance in electoral litigation, whether Republicans are going to become dominant is a very important and interesting question that if we don't look at, someone certainly should pay attention to.
--Editing by Robert Rudinger.