In theory, buying yourself a state supreme court should be easy. Most have just five or seven judges, meaning you only have to pick off a few to flip the court toward your political side. Hardly any Americans pay attention to their state’s judiciary, so it’s not that hard to vilify a few judges you oppose as activist tyrants. Plus, in our post–Citizens United democracy, outside groups can spend unlimited sums flooding the airwaves with nasty, fear-mongering attack ads, scaring voters into knocking off judges they don’t really know anything about.
That was the theory, anyway, that led conservatives to launch an unprecedented campaign this election cycle to vote out left-leaning state supreme court judges in Tennessee, North Carolina, Kansas, and Montana. Given the political climate, many observers expected them to succeed. Instead, they fell short—or perhaps more accurately, they were completely and utterly trounced. In all four states, conservatives failed to flip the court; in fact, they failed to oust a single supreme court judge. Aided by progressives and bipartisan state bar associations, the judges fought back and won big.
The total cost of all this judicial electioneering? Nearly $14 million.
If that price tag makes you mourn the collapse of judicial impartiality, remember: It could have been so, so much worse. Conservatives were hoping to replicate their victory in 2010, when anti-gay groups goaded Iowa voters into knocking off three state Supreme Court judges who had voted for marriage equality. The Iowa coup set a terrifying precedent, turning routine retention elections (in which voters decide whether to keep or evict a judge) into a scurrilous referendum on gay marriage. It worked because it took almost everybody by surprise—including the judges themselves, who refused to campaign for their seats. As a reward for their dignified silence, they got kicked off their own court.
After that painful defeat, progressive judges across the country wised up. But their adversaries were even more energized by their Iowa triumph and have spent four years angling for a repeat performance in other states. This year, conservatives’ crown jewel was supposed to be the Tennessee Supreme Court, where three judges were up for retention elections. As my colleague Dahlia Lithwick explained in June, the state Senate Speaker and Lt. Gov. Ron Ramsey decided to launch a vicious campaign against the three judges, for no other reason than that they were appointed by Democrats. Ramsey claimed, absurdly, that the judges were soft on crime and bad for business—and reminded voters that if they flipped the state Supreme Court, every branch of the Tennessee government would finally be dominated by Republicans.
Ramsey had money, momentum, and politics on his side. What he didn’t have were votes. In August, Ramsey resoundingly lost his campaign when voters allowed all three judges to keep their seats. The fight cost the judges a collective total of $1.13 million, with the total expenditures, including those by the judges, their adversaries, and outside groups, surpassing $2.4 million. (The 2006 retention race, in contrast, cost nothing.)
Then, in the November election, Ramsey’s cause suffered a second, equally huge defeat. Tennessee conservatives have been filing lawsuits for decades claiming that retention elections are illegitimate and that state Supreme Court judges should have to face competitive races. To end the debate, two moderate senate Republicans placed a constitutional amendment on the ballot that would guarantee retention elections not just for state Supreme Court judges, but also for appeals court judges. The amendment passed easily, delivering a second stinging rebuke to conservatives’ campaign against judicial independence.
A similar story played out in North Carolina, where conservatives are worried that the state Supreme Court could invalidate a slew of recent Republican triumphs, from voter suppression to abortion restrictions. Currently, Republicans hold a bare 4–3 majority on the court, a slim margin that conservatives hoped to make lopsided this election. So the Republican State Leadership Committee targeted three seemingly vulnerable Democratic judges, hoping the same voters who seemed poised to push Democratic Sen. Kay Hagan out of office would also knock off a few liberal judges in the process.
In a purple state like North Carolina, it’s no shock that many voters split their tickets. But the results of the judicial election in Montana defy an easy explanation. This year, conservatives saw an opportunity to oust Mike Wheat, a state Supreme Court justice who has wound up on the liberal side of several environmental and gay rights cases. They poured millions of dollars into a campaign to replace Wheat with a vehemently pro-gun, anti-abortion lawyer, smearing Wheat as a radical leftist.
In Montana, this should have played well. Instead, it backfired: Wheat won by a massive margin, deftly trouncing his conservative opponent in an election decided largely by conservative voters.
But the biggest judicial surprise this election cycle came out of Kansas, where a coalition of right-wing groups attempted to unseat two Supreme Court justices in a retention election. Both justices had voted to overturn death sentences and support abortion rights. They were also willing to overturn the convictions of criminals, even violent ones, who had received an unfair trial, earning the ire of so-called victims’ rights advocates.
All of this should have made them sitting ducks in a dark-red state like Kansas. Voters, however, showed little interest in kicking off the justices. While granting the ultraconservative Sam Brownback a second term as governor, Kansans also let both justices keep their jobs by a comfortable margin.
How, in an otherwise decisive Republican wave, did conservatives fail so resoundingly in their quest to stack state courts with right-wing judges? The Republican State Leadership Committee, which helped to finance most of these races, couldn’t even oust an obscure progressive circuit judge in Missouri despite blitzing the campaign with vast sums of cash. Across the country, voters in both red and blue states cast their ballots for conservative candidates. But when it came to judicial elections, Americans in every state resoundingly rejected a push to knock out progressive judges.
These results confirm a pretty basic fact about the American judiciary. No matter what the Supreme Court thinks, judges are not politicians, and Americans don’t seem too eager to treat them like political animals. It’s fine to vote out a politician for a vote you don’t like, but voting out a judge for a decision you disagree with clashes with the most basic principles of judicial independence. At the end of the day, most Americans understand that a judgeship should not go to the highest bidder or the biggest spender. The question now is whether conservatives will give up their ill-advised crusade to buy up as many courts as possible—or whether they’ll simply try harder next time around. At a mere $14 million, after all, conservatives are just getting started.