Countering the Majoritarian Difficulty

Abstract

Most state court judges are elected to office, and thus must be attentive to voter preferences just like other elected officials. Critics of judicial elections fear that subjecting judges to majoritarian pressures jeopardizes the rights of disfavored groups and undermines the rule of law, and accordingly call for their abolition. The reality, however, is that judicial elections are firmly entrenched in thirty-eight states, and thus appear to be a permanent part of the legal landscape.

This article suggests that the so-called “majoritarian difficulty” posed by elected judges can be tempered by regular interactions with appointed, life-tenured federal judges, who are better insulated from public opinion. By constitutional design, the federal courts work closely with their state counterparts, overseeing state court decisions and sharing jurisdiction over questions of both state and federal law. As a result, federal courts have the potential to offset majoritarian influences on state courts by reviewing state court decisions, issuing binding and persuasive precedent on questions of federal and state law, and providing state courts with political cover for unpopular decisions. Most important, litigants can often frame their cases to get into federal court when they fear that an elected state court judge would be likely to rule against them.

After describing the important role that federal courts can play in diluting majoritarian influences on elected state court judges, the article then examines empirical evidence suggesting that federal courts are, in fact, more involved in overseeing elected state court judges than their appointed counterparts. The article concludes by asserting that federal courts should assume a more proactive role in mitigating the majoritarian difficulty by taking a state’s judicial selection method into account when making jurisdictional choices.

Keywords: judicial elections, countermajoritarian difficulty, judicial review, federalism, state courts, habeas corpus, judicial selection, majoritarian difficulty