Document Type

Article

Publication Date

2025

Abstract

Many legal scholars and jurists oppose electing judges. Their core criticism against judicial elections is that elected judges are incentivized to avoid issuing unpopular, countermajoritarian decisions in constitutional law cases and thus fail to safeguard minority rights against abuses of the majority. Scholars have described this problem as the elected judges’ “majoritarian difficulty.” Numerous empirical studies suggest that elected judges do, in fact, fear electoral backlash and allow majoritarian demands to affect their decision-making.

This Article asks whether such fears are warranted. Elected judges should not allow majoritarian pressures to affect their decision-making unless the American public is aware of countermajoritarian decisions and is willing to vote out judges who issue such decisions. Leveraging a series of original survey experiments, this Article first demonstrates that when voters are informed of how judges make decisions, they approve of judges who engage in principled legal analysis even if the judges issue countermajoritarian decisions that do not further the voters’ political preferences. The survey results also indicate that voters are less interested in a judge’s stance on particular issues and more focused on whether the judge engages in principled legal analysis, disregards public opinion, checks the other branches of government, and exhibits strong ethics, competence, and temperament. The Article then reviews an original dataset of all online news and social media posts concerning judicial elections in the two years following Dobbs v. Jackson Women’s Health Organization, which indicates that despite the extreme polarization of American politics and the increased importance of elected judges, most judicial elections remain low-salience affairs, rarely driven by a judicial candidate’s stance on social issues. Thus, being unaware of how judges reach decisions, voters are not likely to use this information to punish judges who issue countermajoritarian decisions.

The Article next analyzes survey responses to offer two reasons why the American public, somewhat counterintuitively, supports judges who issue countermajoritarian decisions that do not advance their political preferences. Although the public expects other elected officials to faithfully represent the preferences of their constituents, it appears that the public recognizes the judiciary as a uniquely countermajoritarian institution that is obligated to disregard public demand. Additionally, the public recognizes that it has other readily accessible, popular means of seeking reform, obviating the need to vote out judges who issue countermajoritarian decisions.

These findings have several implications. First, despite the scholarly criticism of judicial elections, the ills of the majoritarian difficulty may be preventable if judges better understand voting behavior. Second, the results explain why the American public continues to support judicial elections despite the scholarly consensus against judicial elections. From the voters’ perspective, judicial elections do not pose a threat to judicial independence because voters rarely pass political judgment on judges through elections but simply view elections as an opportunity to vote out unethical or incompetent judges when warranted. Third, the results highlight how a less entrenched state constitution and relatively easy means of popular reform can provide elected judges the leeway to decide cases without the fear of electoral backlash. Finally, despite the notion that state courts are inferior to federal courts and fail to safeguard minority rights due to majoritarian pressures, the results suggest that state courts can be equally capable as federal courts.

Ultimately, it is entirely within the power of elected judges to issue countermajoritarian opinions based on principled legal analysis without undue concern for public demand.

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