Study in Unaccountability: Judicial Elections and Dependent State Constitution Interpretations


For the past thirty years, advocates have asked state judges to interpret their state constitutions in ways that would provide expansive protections for criminal defendants, beyond the minimum guarantees required by the federal constitution. However, this New Federalism movement has largely ignored the forces that constrain state judges when they interpret their state constitutions, to the detriment of criminal justice reform advocates.

This article focuses on state constitutional search-and-seizure provisions to analyze five possible constraints on state judges: the presence or absence of an intermediate appellate court, the age of the state’s constitution, the political ideology of state voters, the method of enacting state constitutional amendments, and the method by which a state’s judges are retained. It asks if any of these factors make a court more likely to interpret its state’s search-and-seizure provision as either controlled by the federal constitution or independent of it. It finds only one factor -a state’s judicial retention method – is statistically significant. The more electorally-accountable judges are, the less likely they are to interpret their search-and-seizure provision independently of the federal constitution.

This relationship is worrisome because judicial elections are supposed to give voters more control over the substance of state law by making judges sensitive to the voters’ opinions. However, this article shows that elected judges are more likely to tie their state constitutional standards to the federal constitution than are unelected judges. Electing judges, then, produces an unintended result: it makes a state court more likely to turn a state constitutional question, which should be decided by the state court, into a federal constitutional question to be decided by the United StatesSupreme Court.

Suggested Reading

A deeply flawed eighty-six page legal memorandum revealed the rationale for the U.S. Justice Department’s March 2015 decision not to prosecute Ferguson police officer Darren Wilson. The Article rejects the Department’s contention that prosecution was not permitted by the governing