Guest Essayist: Joerg Knipprath


A wave of state constitutional conventions during the middle of the 19th century reflected the increased “democratization” of American politics that resulted in the election of President Andrew Jackson and the emergence of two modern national programmatic parties, the Democrats and the Whigs. In established and newly-formed states, the growing movement for popular control over government led to reforms of judicial systems by having judges run for political office under partisan aegis and denomination. Today, eight states retain some form of partisan election for their appellate courts, and more do so for their general trial courts.

By the late nineteenth century, the tide turned again, with partisan politics becoming identified with political corruption, urban political “machines,” and party bosses controlling the process from “smoke-filled back rooms.” Over the next several decades, reformers, often working under the label of “Progressivism,” pushed broadly for nonpartisan elections, including for judicial offices. Most new states, as well as some established states, adopted this system in the several decades beginning in the 1880s. About one-third of the states still have nonpartisan elections for their appellate courts; still more do so for their general trial courts.

There were also dissenters to the very idea of elected judges, at least above the level of local trial courts. Legal elites claimed that elections undermined judicial independence and gave short shrift to legal knowledge, experience, and temperament. One alternative would have been to follow the path of European systems that make judges civil servants, with a professional career path focused on passing examinations and embarking on the judicial analog to the old Roman cursus honorum to be selected to higher courts. While such a system makes sense for administrative courts or for courts that address technical issues of contract, property, or even criminal law, American courts address constitutional law controversies, as well. Those questions often overlap with controversial political issues, so that a more complex and difficult balancing act arises between judicial knowledge and independence, on the one hand, and political accountability, on the other.

One reform proposed early in the 20th century by the American Judicature Society was so-called merit selection. A non-partisan commission chooses a list of nominees, from which the governor appoints the judge, with no involvement by the state legislature. Thereafter, the people will vote at the next general election in a plebiscitary “yes-or-no” choice to retain or reject the appointee. Each judge so selected will have to stand in further periodic retention elections. This model was first enacted in 1940 in Missouri. Variants of the “Missouri Plan,” as it was dubbed colloquially, were adopted in about half of the states during the middle of the 20th century for intermediate appellate courts and supreme courts, though in fewer states for general trial courts. Since 1934, California has an inverted variation of the Missouri Plan, for courts above the Superior Court (trial court). The governor selects a nominee who must then be reviewed and confirmed by the state’s Commission on Judicial Appointments, which is composed of the chief justice of the California Supreme Court, the state attorney general, and a specified justice of the intermediate court of appeal. Again, the legislature does not participate.

While the Missouri Plan is still a popular reform proposal, it has come under fire by others who see it, with some justification, as an attempt by an unelected legal elite to entrench itself further in an isolated and unaccountable judicial bureaucracy. That opposition has manifested itself in increasingly divisive judicial retention elections and in some states, rejection of concrete efforts to institute the Missouri system. As to the former, while judges still overwhelmingly win retention elections, in California the vote in these elections has become closer. In the 1986 election, the chief justice and two associate justices of the California Supreme Court were rejected due to the public’s fury with the jurists’ perceived categorical hostility to application of the death penalty. Other critics complain that merit systems are a mirage, in that it is impossible to take partisan politics out of the process. They assert that political influence manifests itself in many ways through the structure of the system and the influence that the governor exerts through “citizen appointees” on the selection commission.

State courts generally have the same powers of judicial review regarding state constitutional law as federal courts have as to matters of federal constitutional law. If a state supreme court strikes down a state law as violating the state constitution, there usually is no review by the U.S. Supreme Court. The state court has acted under “adequate and independent state grounds,” which means that no federal constitutional interest is involved for further review. In addition, state courts can review state laws for their conformance to the U.S. Constitution, statutes, or treaties. Such decisions, whether for or against the state law, are usually subject to review by the U.S. Supreme Court.

In addition to their role in shaping ordinary civil and criminal law, much constitutional law is made through the state courts. One reason is because the U.S. Constitution provides only a “floor” of protection for individual rights. Moreover, the U.S. Supreme Court reviews a relatively small percentage of cases decided by all lower courts, including the 12 federal circuit courts, the 50 state supreme courts, and assorted other courts. State legislatures (and Congress) can expand those rights by statute, and state courts can do so through interpretation of their state’s constitution. While it is not always clear when or whose rights are expanded, rather than contracted, some state courts have been quite active in striking down state laws. For example, in abortion, school financing, same-sex marriage, and criminal procedure, among other topics, state courts have often gone further or, at least, been ahead of federal courts in defining constitutional rights. Compared to the last half of the 20th century, the U.S. Supreme Court has become more reluctant to lead constitutional change during the last couple of decades. This has refocused litigants’ attention on the state supreme courts, a trend that is likely to continue.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at:

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