Case Visibility and the Electoral Connection in State Supreme Courts

• Author: Damon M. Cann,Teena Wilhelm
• DOI: 10.1177/1532673X10385778
• Published date: 01 May 2011
• Date: 01 May 2011
• Subject Matter: Articles

American Politics Research
39(3) 557 –581
Case Visibility and the
© The Author(s) 2011
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Electoral Connection in
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DOI: 10.1177/1532673X10385778
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State Supreme Courts
Damon M. Cann1 and Teena Wilhelm2
Abstract
Critics traditional y portray state Supreme Court elections as low-information
events that fail to accomplish the stated goal of engendering accountability to
the public. Recent changes in the intensity of contestable judicial elections have
led scholars to consider the effect of public opinion on state court decision
making. We delineate necessary conditions for judicial responsiveness to public
opinion, integrating research on state court decision making with the broader
literature on representation. We then empirically test our framework for
judicial responsiveness. Our findings suggest that the strength of the electoral
connection between state supreme court justices and their constituents is
quite dependent on method of judicial retention and the visibility of the case.
Keywords
state supreme courts, judicial elections, electoral accountability, judicial
responsiveness, judicial retention, case visibility
Introduction
The notion that voters have the ability to hold elected officials accountable
for their actions is a central tenet of democratic theory. This “electoral con-
nection” between citizens and elected officials is intended to generate more
1Utah State University, Logan
2University of Georgia, Athens
Corresponding Author:
Damon M. Cann, Department of Political Science, Utah State University,
0725 Old Main Hill, Logan, UT 84322-0725
Email: damon.cann@usu.edu

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American Politics Research 39(3)
policy responsiveness and subsequently offer greater legitimacy for political
institutions (Mayhew, 1974). It has been the subject of intense study in the
legislative context (see, for example, Erikson, 1978; Erikson & Wright, 2000;
Miller & Stokes, 1963; Stimson, MacKuen, & Erikson, 1995). A nearly exclusive
focus on the electoral connection in Congress seems natural given the founders’
design of the legislative branch as the most democratic branch of government.
However, with pronounced increases in the visibility of judicial elections,
scholars have begun to consider the judicial branch as a unique and important
venue in which to explore the electoral connection. Although the federal judicial
system is staffed exclusively by appointment, efforts to balance accountability
and judicial independence at the state level continue to fuel debates about
whether state judges should be elected (to maximize accountability), appointed
(to maximize independence), or selected in a hybrid process where judges are
selected by appointment and later required to face a retention election. Tradi-
tionally, judicial elections have lacked competition, substantive discourse, and
high levels of voter participation. However, in the past 40 years, this has changed.
Although the politicization of judicial elections opened a new front of attacks
on judicial elections for their political nature, proponents of judicial elections
argue that “new-style” judicial elections have increased voter participation
(Hall, 2007; Hall & Bonneau, 2008) and that they may better inform voters.
As a result, proponents of judicial elections argue that elected judges are more
responsive to the policy opinions of their constituents than those who are
appointed. Although it may not settle the debate regarding judicial selection,
these claims do beg the empirical question of whether judicial elections generate
a stronger electoral connection between elected judges and their constituents.
Recent scholarship provides some support for this notion. Hall (2001) finds
a strong association between the murder rate in a state and incumbents’ electoral
fortunes, showing that votes in judicial elections can turn on key criminal issues.
Brace and Boyea (2008, 2007) show that there is a strong association between
votes to overturn death sentences and public support for the death penalty in
states that elect judges. They find no such association in states that appoint
judges. As the evidence provided by these scholars is convincing, we seek to
situate these results in the broader literature on representation.
Particularly, scholars of representation consistently find that the strength
of the electoral connection varies greatly across context, particularly the salience
of the issues involved (consider Burstein, 2002, 2003; Iyengar, 1990; Krosnick,
1990). We suspect that there is similar variation in the degree of judicial
responsiveness depending on the nature of the case being decided.
In recent years, state supreme courts have become arbiters of some of the
most important (and controversial) policy issues of the day, including same-sex

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Cann and Wilhelm
559
marriage, education policy, torts, and the extension of civil rights beyond those
recognized by the federal government. Although many of these significant
decisions receive a great deal of public attention, a surprising amount of the
workload of state courts—including cases with significant policy implications—
operates out of the public’s view. Although the current literature on judicial
accountability provides solid evidence of an electoral connection on key criminal
issues, the degree of accountability may vary across cases depending on the
salience of the case, or the visibility of the issue being decided. With this in
mind, we propose to reexamine the question of citizen influence on state supreme
court decision making. We first revisit the general literature on representation
and develop a theoretical framework for the conditions under which citizen
preferences may influence judicial action. We then test this framework on data
drawn from the State Supreme Court Data Archives (SSCDA) and discuss the
findings. Finally, we conclude with a discussion of our results and their possible
implications for the debate over whether judges should be selected in competi-
tive elections.
The Electoral Connection
and State Supreme Courts
The basic logic of the electoral connection is simple: Politicians will be moti-
vated by the revealed preferences of their constituencies toward some form of
policy responsiveness. The prevailing, although not isolated, theory to explain
this motivation comes from a rational choice perspective: single-minded seek-
ers of reelection will pursue electoral goals and make policy choices accord-
ingly (Fenno, 1973; Mayhew, 1974). The linkage of constituency opinion and
representative behavior has been primarily scrutinized in the congressional
literature, as Miller and Stokes’s (1963) classic study became the first of many
attempts to determine the extent to which representative behavior measurably
reflects the opinions of the electorate (see also Erikson, 1978; Kuklinski &
Elling, 1977; Page & Shapiro, 1983; Stimson et al., 1995; among many oth-
ers). Of course, given that any electorally minded politician should theoreti-
cally share such motivation, scholars have extended the discussion to include
assessments of all political leaders, including the executive branch (e.g.,
Druckman & Jacobs, 2006; Erikson, MacKuen, & Stimson, 2002; Kingdon,
1984).
More recently, scholars have considered the possibility of an electoral con-
nection between the public and the judicial branch (Brace & Boyea, 2008;
Hall, 1987; Hall & Brace, 1992; Traut & Emmert, 1998). Although significant
research has investigated the link between the U.S. Supreme Court and public

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American Politics Research 39(3)
opinion (McGuire & Stimson, 2004; Mishler & Sheehan, 1993; Norpoth &
Segal, 1994), the electoral insulation and appointment process specific to the
federal courts makes this line of research a somewhat altered question. The
ongoing practice of electing justices in some American states, coupled with
increasingly vigorous elections, however, presents a unique opportunity to test
whether an electoral connection exists in the judicial branch. As state supreme
court justices, in particular, may be subjected to a similar electoral reality as
state legislators and state executives, it stands to reason that these justices may
also have motivation to behave with single-minded, reelection-seeking strate-
gies. As there is considerable variation in the states with regard to how justices
are selected, the comparative advantage of examining behaviors of justices who
are elected versus those who are not provides additional motivation to study
these courts. In the context of judicial elections, accountability is an often used
but seldom defined concept. Following Dunn and Legge (2001), we distinguish
accountability from responsibility. Accountability is an external characteristic,
reflecting the obligations of a government official to the public, whereas respon-
sibility represents the official’s internal capabilities to meet external charges.
In the judiciary, the notion of external obligations associated with accountability
typically refers to the idea that judges should be responsive to citizens’ wishes
(e.g., Brace & Boyea, 2008; Hall, 2001). This type of direct accountability, or
in the language of Romzek and Dubnick (1987) direct political accountability,
is that most closely associated with elections generally. Whereas we discuss
accountability in this sense, there are others that might also be considered.
For example, judges...