State Supreme Court Justices: Who Are They?

John B. Wefing^(*)

Table of Contents

I. Introduction

II. Overall Summary

III. Gender

IV. Minorities

V. Religion

VI. Political Affiliations

VII. Method of Appointment

VIII. Prior Judicial Experience

IX. Educational Background

X. Conclusion

XI. Appendices

I.  Introduction

State supreme court justices are perhaps the most important and least written about group within the judicial system in this country.⁽¹⁾ Obviously much has been written about individual decisions of these justices and their courts, but far less has been written about them as a group.⁽²⁾ There have been numerous articles written about the United States Supreme Court Justices, but little has been written about the state supreme court justices. This is obviously the result of the fact that there are fifty different state supreme courts, and virtually no one can be an expert on each of these. Furthermore, because legal education in this country is primarily national in nature, law schools tend to direct focus on federal decisions. Naturally, law schools recognize the importance of individual decisions of particular state courts in various substantive areas, but often fail to integrate that information into a composite picture of any individual state court or how all of them together affect the law.

In recent years the acts of state courts in adopting the new federalism,⁽³⁾ sponsored by Justice Brennan,⁽⁴⁾ has in fact focused more attention on state courts. Numerous articles have been written about the actions of the state courts in granting greater rights under their own constitutions than the United States Supreme Court has granted under the United States Constitution.⁽⁵⁾

It seemed appropriate to study the current make-up of the state supreme courts in this country. There are of course fifty state supreme courts⁽⁶⁾ and 327 state supreme court justices.⁽⁷⁾ The intention of this study was to try and create a composite picture of those justices.⁽⁸⁾

As part of this study, I examined various reference books that gave information concerning these justices,⁽⁹⁾ various news sources,⁽¹⁰⁾ Internet web cites,⁽¹¹⁾ and the On-line Westlaw Directory of Judges.⁽¹²⁾ In addition, I sent a questionnaire to all 327 justices, of whom 216 responded.⁽¹³⁾ The questionnaire focused on education, race, religion, political party, gender, and age.

This article attempts to compile information about state supreme court justices which might be helpful to serious scholars interested in the study of state supreme courts as well as to those interested in analyzing in general a particular state supreme court within the context of all courts. It should be noted that even as this work was in progress there were changes in the courts. Although I have attempted to keep track of all the changes, there undoubtedly will be changes that have occurred since this data was compiled. However, I have tried to keep all information current at least until July of 1996.

The study briefly describes the method of appointment in each state and provides information about the gender, race, age, education, prior judicial experience and, to the extent I was able to gain the information, details about religion and political affiliation.

The questionnaire also asked each justice to categorize himself or herself as to judicial philosophy. The question said "Do you consider yourself to be liberal, moderate or conservative?" Perhaps not surprisingly the vast majority of the justices who responded to that particular question indicated that they considered themselves to be moderate. One hundred sixty-two justices answered the question. Of these, the responses were as follows: 16 conservative, 10 liberal, and 122 moderate. Naturally, it may be that a moderate in one state might be considered a liberal or a conservative in another state.

Most individuals probably do not want to consider themselves as extreme and it is possible that, in order to be selected as a state supreme court justice, it is necessary to avoid such extremes. Of those few who did describe themselves as liberals, three of the ten were women and two of them were minorities. Of the sixteen who described themselves as conservative, one was a white female, one was a Hispanic female, and fourteen were white males.

II.  Overall Summary

Some years ago in the most complete recent study of state supreme courts justices, Susan Fino found that most state supreme court justices were white, democratic, Protestant men who were educated in the schools of the states where they were sitting.⁽¹⁴⁾ That study was based on the years 1975 and 1977, and while there have been tremendous changes since then, it still can be said today that the majority of justices are white, male, democratic Protestants, a large percentage of whom went to both law school and college in the state in which they are sitting.

However, it also must be noted that the changes that have occurred since the Fino study can be viewed as equally stunning.⁽¹⁵⁾ In 1975, there were four women state supreme court justices,⁽¹⁶⁾ today there are sixty-six. In 1975, there was one minority justice,⁽¹⁷⁾ today there are thirty-seven.

There are currently 327 supreme court justice positions in the country.⁽¹⁸⁾ One state, Louisiana, has an eight member supreme court,⁽¹⁹⁾ six states have nine member supreme courts,⁽²⁰⁾ eighteen states have five member supreme courts,⁽²¹⁾ while the largest number, twenty-five,⁽²²⁾ have seven member supreme courts.⁽²³⁾ There were 261 men and 66 women serving as state supreme court justices, with an average age of 58.6 years old.

There were twenty African American males⁽²⁴⁾ and five African American females resulting in a total of twenty-five African American justices. There were two Hispanic⁽²⁵⁾ females and two Hispanic males for a total of four Hispanic justices.⁽²⁶⁾ There were two Asian females and four Asian males for a total of six Asian justices.⁽²⁷⁾ There were also two White-Indian justices.⁽²⁸⁾ The grand total of minority state supreme court justices is thirty-seven.

I identified the religions of 230 of the justices and, of that number, 135 (58.7%) were Protestant, 68 (29.6%) were Catholic, and 13 (5.7%) were Jewish. Fourteen (6%) identified themselves as "other religions."

I identified the political affiliation of 198 justices. One hundred eleven justices were democrats (56%), 75 justices were republicans (37.9%), 11 justices were independent (5.6%), and 1 justice was listed as a populist (0.5%).

I identified the educational backgrounds of 316 justices for undergraduate educational institutions and 322 justices for law schools.⁽²⁹⁾ Numerous colleges and law schools were represented. This was not surprising because many of the justices attended schools in the states where they serve as justices rather than going to one of the "name schools." To the extent that some schools were represented more often, the following schools led the list of undergraduate schools: Yale had eight justices, the University of Iowa had seven justices, followed by Dartmouth with six, and Harvard and Stanford with five.

In looking at the law schools, Harvard led the way with twenty-five. Then followed George Washington University with ten, the University of Michigan, University of Iowa, and Yale with eight. Georgetown had seven, the University of Arkansas, Indiana University, and the University of Washington each had six.

Many law students and even some lawyers most familiar with the federal system of appointment of judges may be surprised to learn that most state judges owe their positions, at least in part, to the electoral process. As most law students know, federal judges are appointed by the President with advice and consent of the Senate.⁽³⁰⁾ Once appointed and confirmed they are on the bench for life, except for the very unlikely event of impeachment. This tenure gives them a great deal of independence. State justices, in general, have much less independence because most state systems do not include life-time appointments. Rather, the majority of states require re-election to remain on the bench.

The states have various methods of appointment. Many have either a nonpartisan or a partisan election system. Many of the states that use an initial appointment system still include a retention election. All but nine states include some form of electoral process as part of the selection of their state supreme court justices.⁽³¹⁾

Appendix B to this article includes in brief the method of appointment in each state.⁽³²⁾ For those who emphasize state law issues it may be interesting to try and determine whether or not the method of appointment has any bearing on the role taken by the state supreme courts. For example, it would seem that state courts which are most subject to the electoral process would tend to be the most conservative and least likely to strike down popularly favored legislation. On the other hand, courts that have the least control by the people ought to be the most liberal and most willing to reject the views of the majority.⁽³³⁾ In the section on judicial appointment, I will examine in more detail the potential problems with various systems of appointment.⁽³⁴⁾

III.  Gender

In my office I have a picture of my grandfather's class at Columbia Law School in 1876. There are no women in the picture as Columbia did not accept women until 1927.⁽³⁵⁾ In fact, until the 1970s, there were relatively few women in law school in the country. It is not too surprising then that, in 1975, there were only four women state supreme court justices.⁽³⁶⁾

There has been a long history of discrimination against women in this country. In Bradwell v. Illinois,⁽³⁷⁾ the United States Supreme Court held that a state could refuse to license women for the practice of law.⁽³⁸⁾ In that case Justice Bradley said:

The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong or should belong to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.⁽³⁹⁾

Justice Bradley would undoubtedly be surprised to discover that if he were to make that argument to his colleagues on the United States Supreme Court today, he would be making it to two women.

The first woman to serve as a justice of any state supreme court in the country was Florence Allen.⁽⁴⁰⁾ She served on the Ohio Supreme Court from 1922 to 1933.⁽⁴¹⁾ She then joined the Federal Circuit Court of Appeals where she served until 1962.⁽⁴²⁾ This achievement is even more notable when one realizes that the constitutional amendment granting women the right to vote was only passed two years earlier in 1920.⁽⁴³⁾

There was not another woman appointed to any state supreme court until Justice Rhoda Lewis was appointed in 1959 to the Hawaii Supreme Court.⁽⁴⁴⁾ That was a long drought. It was partially caused by the fact that so many law schools would not accept women students. Additionally, there existed general discrimination against women which limited the number who would be available to serve.

New York University was one of the early law schools to accept women. It began admitting women in 1891, Columbia in 1927, and Harvard in 1950.⁽⁴⁵⁾

By 1975, when Susan Fino conducted her study, there were still only four women state supreme court justices.⁽⁴⁶⁾ A subsequent study revealed that in 1980-81 there were still only ten women on state supreme courts.⁽⁴⁷⁾ 1981 was also the year that President Reagan appointed Sandra Day O'Connor as the first woman Justice of the United States Supreme Court. By 1985, the Fund for Modern Courts discovered that there were twenty-three women on state supreme courts.⁽⁴⁸⁾ Now, eleven years later, there has been a significant increase to sixty-six.

The sixty-six female state supreme court justices are fairly evenly spread across the country. All but six states have at least one woman justice. The six states that do not have any are: Arizona, Florida, Nebraska, New Hampshire, South Dakota, and Wyoming. Of those six, Arizona and Florida each had a woman justice serve previously. However, the remaining four states have never had a woman justice.

Four states currently have three women justices: California, Michigan, Minnesota, and Wisconsin. For a brief period, Minnesota actually had a majority of women, four, on its court.⁽⁴⁹⁾ Fourteen states have two women: Colorado, Connecticut, Georgia, Idaho, Iowa, Louisiana, New Jersey, New York, Ohio, Oklahoma, Rhode Island, Texas, Virginia, and Washington.

There are currently six women serving as Chief Justices. They are: Ellen Ash Peters in Connecticut, Kay McFarland in Kansas, Deborah Poritz in New Jersey, Judith S. Kaye in New York, Alma Wilson in Oklahoma, and Barbara Durham in Washington. Previously, Rose Bird served as Chief Justice of California from 1979 to 1987, Mary Coleman served as Chief Justice of Michigan from 1977 to 1983, and Ann K. Covington served as Chief Justice of Missouri for a two year term.⁽⁵⁰⁾

In light of the increasing number of women serving in lower court positions and the large number of women who have entered the legal profession in recent years, it would seem likely that there will be a continuing increase in the numbers of women serving on state supreme courts.⁽⁵¹⁾ It may, however, be a long time before women constitute the 164 justices necessary to represent their proportionate share of the population.⁽⁵²⁾

IV.  Minorities

The history of discrimination against racial minorities in this country does not have to be repeated here, but should be acknowledged. As a result of that history there have been relatively few minorities who have served as state supreme court justices.

In 1975, there was only one minority judge serving on a state supreme court.⁽⁵³⁾ It should be noted that this was after Thurgood Marshall had been appointed by President Lyndon Johnson in 1967 to the United States Supreme Court. In 1980, that number had doubled to two.⁽⁵⁴⁾ In 1985, that number had increased to thirteen, with nine African Americans and four Asians.⁽⁵⁵⁾

Today, there are thirty-seven minorities or non-whites serving on state supreme courts. There are twenty African American males, five African American females, two Hispanic males, two Hispanic females, four Asian males, two Asian females, and two White-Indian males.⁽⁵⁶⁾

Because there are less minorities serving as state supreme court justices than there are women, minorities are not as evenly spread across the country. Furthermore, there are many more states that have no minority representation.

One state, Hawaii, has four minority justices. They are all Asian. There are two states which have three minority justices: Arkansas has two White-Indian justices and one African American justice, and California has two Asian justices (one male and one female) and one African American female. There are three states which have two minority justices: Georgia with two African American justices, and Michigan and New York each of which has one African American justice and one Hispanic justice.⁽⁵⁷⁾ Twenty-one states have one minority justice: Alabama, Colorado, Connecticut, Florida, Illinois, Indiana, Louisiana, Maryland, Minnesota, Mississippi, Missouri, New Jersey, New Mexico, North Carolina, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, Washington,⁽⁵⁸⁾ and West Virginia.

When population figures are taken into consideration some of the statistics are not surprising. In Hawaii, for example, where four of the five justices are Asian, the population largely consists of Asians. The total Asian or Pacific Islander population is 685,236 out of a total of 1,155,726, or 59.2%.⁽⁵⁹⁾ Again, California which has two Asian justices also has a significant population in that ethnic group; approximately ten percent of the total population is Asian or Pacific Islander.⁽⁶⁰⁾ In no other state do Asians make up even five percent of the population. This population factor is probably particularly relevant in states where judicial selection includes an election.

The total number of African American justices is inconsistent with the total number of African American members in the population. Adhering strictly to such statistics, there should be approximately forty African American justices, rather than the current number of twenty-five African American justices.⁽⁶¹⁾

Georgia, which is the only state with two African American supreme court justices, has an African American population representing twenty-six percent of the entire state population.⁽⁶²⁾ Two African American justices out of seven justices represents twenty-nine percent of that population, and, thus, on a purely proportional basis, representation is appropriate.

If I were to analyze these states with only population in mind, the following states should have two African American justices: Alabama, Louisiana, Maryland, and North Carolina.⁽⁶⁴⁾ On the other hand, Colorado, Minnesota, Washington, and West Virginia are probably over-represented by having one. Even states like California, Connecticut, Indiana, and Pennsylvania are slightly over-represented. This may demonstrate the reason why people should avoid trying to use population proportion as a major factor in deciding the appropriate number of minorities to serve on state supreme courts.

Again, analyzing these figures with only population in mind the following states should have one African American justice: Delaware, Ohio, Oklahoma, and Texas.

In doing the same statistical type analysis with regard to Hispanics, there is a national under-representation. According to the 1990 census, nine percent of the population is of Hispanic origin.⁽⁶⁶⁾ Using just proportion of population statistics, there should be twenty-nine Hispanic justices. In fact, as already noted, there are only four Hispanic justices in the country.⁽⁶⁷⁾ However, when I examined the statistical breakdown state by state, I found that Hispanics comprise more than ten percent of the population in relatively few states: Arizona (18.8%), California (25.8%), Colorado (12.9%), Florida (12.2%), Nevada (10.4%), New Mexico (38.2%), New York (12.3%), and Texas (25.5%).⁽⁶⁸⁾ Three of these states have one Hispanic justice: New York, New Mexico, and Texas. Surprisingly, Michigan, which only has a 2.2% Hispanic population, has one justice.⁽⁶⁹⁾ Again using this proportionate representation approach, New Mexico⁽⁷⁰⁾ and Texas,⁽⁷¹⁾ which each have one, should have two; California should have two, but it does not have any;⁽⁷²⁾ Arizona, Colorado, and Florida probably should each have one.⁽⁷³⁾ Thus, the only state appropriately representing the Hispanic population is New York with one Hispanic justice.

V.  Religion

The results of the studies of the religions of state supreme court justices has remained relatively the same. The largest group is Protestant, followed by Catholics, Jewish, and other religions. The study done in 1975 broke down religion into the following categories: Protestant, Catholic, Jewish, and other.⁽⁷⁴⁾ It then further subdivided Protestant into High status Protestant and Low status Protestant.⁽⁷⁵⁾ I have chosen not to make that further subdivision, but have instead further subdivided the various Protestant religions according to the responses given by the justices to my survey.

In 1975, Protestants accounted for 74% of state supreme court justices, Catholics for 18.2%, Jewish for 4.4%, with others accounting for 3.3%.⁽⁷⁶⁾ In 1980-81, Protestants accounted for 60.2%, Catholics for 23.9%, Jewish for 11.6%, and other for 4.2%.⁽⁷⁷⁾

My study identified the religions of 230 justices. Of that number, 58.7% were Protestants, 29.6% were Catholics, 5.7% were Jewish, and 6% were of other religions. Naturally, since I was not able to identify the religion of every justice there could be some understatement here, but it would seem that a sample of 230 out of a total of 327 should be an excellent representation of the actual situation.

Again, when a comparison with population figures is done, the statistics may not be too surprising. In the census data from 1990, I found that fifty-six percent of the population identified themselves as Protestants, twenty-five percent identified themselves as Catholics, two percent as Jewish, six percent as other, and eleven percent did not have a preference.⁽⁷⁸⁾

The question concerning religion on my survey merely asked for religion, as a result some of the justices responded by saying Protestant without any specific designation, while others specified a particular Protestant denomination. The following chart is a list of those responding in order.

VI.  Political Affiliations

The justices of the state supreme courts have been overwhelmingly democratic. In Fino's study in 1975, 72.6% of the justices identified themselves as democratic, 25.5% as republican, and 1.9% as independent.⁽⁷⁹⁾ In Fino's study for 1977, the figures were 74.2% democratic, 24.2% republican, and 1.6% independent.⁽⁸⁰⁾ In the study done in 1980-81,⁽⁸¹⁾ the dominance of the Democratic party continued. Although that study used a different statistical approach and presented the information in a different format, it still showed that the majority of the state supreme court justices were democratic. That study, as illustrated in Chart 3.a, also showed that the majority of justices appointed under any selection system were democratic.⁽⁸²⁾

That study also showed that the Democratic party was particularly dominant in the southern portion of the country, and that in every portion of the country more justices were democratic than republican.⁽⁸³⁾

My study indicates that while the Democratic party is still the dominant party, the gap has narrowed since the study done by Fino. Of the justices who either responded to that question or whose party affiliation I was able to ascertain, 111, or 56%, were democratic, 75, or 37.9%, were republican, 11, or 5.6%, were independent, and 1 justice, or 0.5%, responded as a populist.

In breaking down the study based on method of selection, the Democratic party, while still the majority party, is not as dominant as it once was. It still has a substantial lead in states which use a partisan election or nonpartisan election form, but it is much closer in the states that use other forms of selection. In the states using the mixed system, the Republicans have edged out the Democrats.

It appears that the dominance of the Democratic party in the south continues and that the Democratic party is also particularly strong in those states that utilize a partisan election form, which is also those states in the south. For instance, every justice on the West Virginia Supreme Court is a Democrat, and that state uses the partisan election system to select justices. The Democratic party is also strong in nonpartisan elections. For example, New Mexico uses the nonpartisan election system, and every justice on the New Mexico Supreme Court is a Democrat. It may be difficult to determine whether the dominance of the Democratic party among southern judges is the result of the partisan election system used primarily in the south or just the dominance of the Democratic party in that region.⁽⁸⁵⁾

One of my younger colleagues while reading an earlier draft of this article was surprised by the dominance of the Democratic party.⁽⁸⁶⁾ I glibly responded that such dominance was probably consistent with the dominance of the Democratic party in this country over the recent years. In subsequently checking the actual statistics it was clear that since the early seventies, the Democratic party has been the dominant party. The following chart shows the strong democratic preference over republican preference.

In looking at a study of political party control of state legislatures since the early 1970s, we see the same dominance by the Democrats with that only reversing in 1995.

Finally, in studying the governors of the fifty states since the early seventies, the democrats have controlled more governorships in twelve of the fifteen years studied.

Seeing the dominance by the Democratic party of the state legislatures, governorships, and popular preference, it is not surprising that the political affiliation of state supreme court justices is tilted in that same direction.

It is often said that most minorities in this country are democratic and that women are more likely to be democratic than men. While the numbers available for this portion of the study may not be sufficient to draw strong conclusions, it would appear that the same holds true for minorities and women appointed to the state supreme courts. Of all the women state supreme court justices whose political affiliations I found, 68.6% are democratic, 22.8% are republican, and 8.6% are independent.

Of all the minorities on the state supreme courts whose political affiliations I was able to identify, 78.6% are democratic, 10.7% are republican, and 10.7% are independent. Of the seven female minorities, six are democrats and one is a republican. Only two male minorities are republican.

If there were no women or minorities on the state supreme courts today, the Democrats would still be the majority, but by a much narrower margin since 48.6% of white male justices are democratic and 45.1% of the white males are republican.

VII.  Method of Appointment

The states use a plethora of selection systems which include appointments, elections, both partisan and non-partisan, merit selection with commissions that recommend, and many others. In order to make some sense of the systems I have elected to use the system devised by Susan Fino which divides the current methods into four basic recruitment processes:⁽⁹⁰⁾

1. appointment--gubernatorial appointment with or without the benefit of a merit list of qualified candidates

2. mixed system--the Missouri Plan or a variation thereof in which there is initial appointment with the requirement of a subsequent retention election based on the judge's record

3. nonpartisan election--popular election without party labels on the ballot

4. partisan election--popular election with party labels (includes legislative election states).⁽⁹¹⁾Using this breakdown, the states are as follows:⁽⁹²⁾

Appendix B will break down each state by method of appointment.⁽⁹³⁾

These different systems of selection have their supporters and detractors. However, no one system has generated support significant enough for all states to gravitate towards it. The debate about the proper method of selection goes back to the beginning of the country. The earliest process following the American Revolution was the appointment process,⁽⁹⁴⁾ including appointment by the legislature.⁽⁹⁵⁾

In the early part of the nineteenth century, there was some movement towards an elected judiciary. This came to full fruition during the Jacksonian period.⁽⁹⁶⁾ By the Civil War, twenty-four of thirty-four states had an elected judiciary.⁽⁹⁷⁾ But as time went on, that system became more and more criticized. It was viewed by many that the judges were selected by political bosses and therefore were subject to corruption.⁽⁹⁸⁾ In the early part of the twentieth century, reform movements began which were led at least in part by Roscoe Pound.⁽⁹⁹⁾ In 1913, William Howard Taft severely criticized both partisan and nonpartisan election systems.⁽¹⁰⁰⁾ Finally in 1940, after a long period of discussion, Missouri adopted a merit selection system.⁽¹⁰¹⁾

For many years the merit system was considered by many to be the ideal system. This system involved the use of a select panel to recommend names to the Governor who would then be bound to select from that list.⁽¹⁰²⁾ That system also included some form of judicial retention election at which the people could vote for or against the justice.⁽¹⁰³⁾ At these elections, the justice would run against his or her record and not against another candidate.⁽¹⁰⁴⁾

Today the merit systems are also under attack because the retention election, which for many years had simply been a rubber stamp, has recently been used to remove justices--usually for taking a liberal position inconsistent with the positions of the majority.⁽¹⁰⁵⁾ When Chief Justice Rose Bird and two colleagues were defeated in a retention election in California it sent a message that justices who are too liberal can be targeted in a retention election and removed from office.⁽¹⁰⁶⁾

Professor Pinello recently published an empirical study of a number of state supreme courts from which he concluded that justices who are selected as a result of an appointment process are more likely to be independent and support individual rights than those selected through an election process.⁽¹⁰⁷⁾ While I agree intuitively with Professor Pinello, I also recognize that any empirical study can be challenged. For example, one of the six states he studied was New Jersey.⁽¹⁰⁸⁾ He correctly pointed out that during the period he studied there had been three democratic governors who did the appointing and three republican governors who did the appointing.⁽¹⁰⁹⁾ However, the republican governors who did the appointing all came from the moderate branch of the Republican party rather than the conservative wing. These governors appointed moderate to liberal justices. If a hard-line conservative governor had been in office the appointments to the court may have been very different and not nearly so receptive to individual rights.⁽¹¹⁰⁾ It should also be noted that New Jersey has an interesting tradition of keeping the court balanced politically.⁽¹¹¹⁾ While an unwritten rule, it is followed religiously. Therefore, in New Jersey, the seven member state supreme court always has at least three members of each political party.⁽¹¹²⁾ From the statistical study of the political affiliation of judges contained in the preceding section of this paper, it is clear that virtually no other states maintain this type of political balance.⁽¹¹³⁾

But the dominance of the elective system should be discussed. Justice Stevens, in a dissenting opinion⁽¹¹⁴⁾ dealing with a death penalty case, dramatically points out one potential problem with a system which relies heavily on the election process.⁽¹¹⁵⁾

The case dealt with a death penalty case in a state which permits the trial judge to refuse to accept the sentence recommendation of the jury.⁽¹¹⁶⁾ The state of Alabama uses a bifurcated trial in which the jury first decides whether the defendant is guilty of committing the crime.⁽¹¹⁷⁾ Then, in a second stage, the jury deals with the issue of the appropriate penalty.⁽¹¹⁸⁾ In most states the decision by the jury of death or life imprisonment is final.⁽¹¹⁹⁾ In the state of Alabama, the jury decision is merely a recommendation to the judge who can change it.⁽¹²⁰⁾ That system was upheld by the majority in the case.⁽¹²¹⁾

Justice Stevens pointed out in his dissenting opinion that judges in Alabama had rejected the jury recommendation of life imprisonment and imposed the death penalty nine times as often as they had overturned death penalties in favor of life imprisonment.⁽¹²²⁾ Alabama uses an elected system and the people in the state had been pushing for harsher sentences.

Justice Stevens noted:

The "higher authority" to whom present-day capital judges may be "too responsive" is a political climate in which judges who covet higher office--or who merely wish to remain judges--must constantly profess their fealty to the death penalty. . . . The danger that they will bend to political pressures when pronouncing sentence in highly publicized capital cases is the same danger confronted by judges beholden to King George III.⁽¹²³⁾

Justice Stevens added a footnote stating that the political "climate is [due to] attacks on candidates with reservations about the death penalty."⁽¹²⁴⁾

In 1995, the Boston University Law Review published a major article dealing with the interrelationship between the election system of appointment of judges and the death penalty.⁽¹²⁵⁾ In this exhaustive study the authors pointed out that in the three states which permit a judge to override the jury's verdict and in which the judge also has to face reelection, judges have overridden life sentences in favor of the death penalty by a margin of two to one.⁽¹²⁶⁾ Whereas in Delaware, the only state where the justices also have the power to override a jury verdict but where there is no reelection process, the override power has only been used to give life imprisonment rather than death.⁽¹²⁷⁾

In a recent detailed article in the Chicago Law Review, Professor Croley discussed at length some of the difficulties that he found with the elected judiciary.⁽¹²⁸⁾ His basic question was "how elected/accountable judges can be justified in a regime committed to constitutionalism."⁽¹²⁹⁾ He goes on to say:

[C]onstitutionalism entails, among other important things, protection of the individual and of minorities from democratic governance over certain spheres. When those charged with checking the majority are themselves accountable to, and thus influenced by, the majority, the question arises how individual and minority protection is secured. Judges who safeguard a minority contrary to the wishes of a majority, for example, can be defeated in the next election and replaced by judges more attuned to majoritarian will.⁽¹³⁰⁾

Justice Stevens and Professor Croley are both concerned with the dangers they see inherent in the elected judiciary.⁽¹³¹⁾ Naturally, others have criticized the ability of courts which are not accountable to the people to decide issues without concern for the consequences. This, of course, is the Counter-Majoritarian problem most often connected with the United States Supreme Court, but which also has been observed in the actions of state supreme courts as well.⁽¹³²⁾ It also should be noted that if people are distressed with the decisions of their state supreme court justices and do not have the opportunity to express their concern through some process they may turn increasingly to the process of constitutional amendment to undercut the decisions of their state supreme court. Many states, notably California and Florida, have used constitutional amendments to reverse decisions of their state supreme courts. It is not the purpose of this paper to engage in a long debate about the virtues or difficulties of the different forms of selection systems, but rather to alert the reader to the existence of the different systems and some of the problems inherent in each.

It should be pointed out that relatively few justices have been ousted by judicial retention elections. However, there have been some important examples.⁽¹³³⁾ The most notable case dealt with the retention election in California in 1986. At that election three liberal justices, including the Chief Justice, Rose Bird, were defeated. While there were undoubtedly a number of issues involved, the primary concerns were the failure of the court to permit the use of the death penalty and the court's general leniency towards criminal defendants.⁽¹³⁴⁾

Very recently another State Supreme Court Justice lost her position when she did not receive a majority in a retention election. Justice Penny J. White of the Tennessee Supreme Court was removed from the bench two months after she joined her colleagues in ordering a new death sentencing hearing for a convicted murderer, Richard Odom.⁽¹³⁵⁾ A number of groups had campaigned against her because of her decision in the death penalty case.⁽¹³⁶⁾

An article in the A.B.A. Journal discussing Penny White's failure to win her retention election says: "[d]isenchantment with the judiciary has taken on an increasingly confrontational and personal tone as individual judges come under political fire for their decisions in particular cases. Moreover, critics are backing up their complaints with campaigns to oust judges who have issued decisions they do not like."⁽¹³⁷⁾ A survey of state court judges done in 1994 by the American Judicature society indicated that "27.6 percent of respondents said retention elections made them more sensitive to public opinion, and 15.4 percent said they would avoid controversial cases and rulings."⁽¹³⁸⁾ The question to be considered then is whether sensitivity to public opinion is good or bad in our constitutional system.

VIII.  Prior Judicial Experience

In looking at the backgrounds of the state supreme court justices, I discovered that the justices took many different routes to their positions. Some were primarily practicing attorneys, while others were heavily involved in government, either in elected or appointed posts. Many served on important commissions or were active in bar association activities. But the factor that appeared more than any other was previous service in another judicial capacity.

Through the years there have been many debates about whether or not prior judicial experience is an important qualification for service on a court of appeals. Many of these debates have arisen with regard to the Justices who have been selected to serve on the United States Supreme Court.⁽¹³⁹⁾ In a recent article, Professor Ross suggested that prior judicial experience was not necessarily a predictor of success on the United States Supreme Court.⁽¹⁴⁰⁾ Professor Ross further stated:

[t]he importance of prior judicial experience in predicting judicial greatness became fraught with political controversy during the 1950s after President Eisenhower announced that judicial experience would be a major factor in making nominations to the Supreme Court. It has remained a source of tension between proponents of judicial activism, who generally favor the appointment of politicians and academics, and advocates of judicial restraint, who generally perceive that prior judicial experience makes a justice more deferential to precedent and more sensitive to the technical nuances of the law.⁽¹⁴¹⁾

This comment is particularly interesting in light of the fact that one of the Justices appointed by Eisenhower under that rule of preference for judicial experience was Justice William Brennan. Brennan had previously served as both a trial court judge and a member of the State Supreme Court in New Jersey and could perhaps be considered among the most judicially active Justices ever to sit on the United States Supreme Court.

At this moment all the members of the United States Supreme Court, except for Chief Justice Rehnquist, had some judicial experience before being appointed to the Supreme Court.⁽¹⁴²⁾ I thought it would be interesting to determine how many of the current sitting state supreme court justices had significant prior judicial experience before selection to the highest court of their states. By significant judicial experience I mean service on a court where they were full-time and had some significant range of cases. For example, I did not include as significant judicial experience a part-time position on a municipal court or magistrates court. Of course there was a wide range with some justices having as much as twenty-three years of judicial experience before becoming a supreme court justice with others having as little as one year.

Using this criteria, I discovered that a large proportion of the justices had significant prior judicial experience. Interestingly, that fact seems not to vary based on the method of selection used in the various states.⁽¹⁴³⁾

Overall, 221 justices had significant judicial experience or 67.6%. Most states, thirty-five, had the majority of their justices having significant judicial experience. Only eleven states had less than half their judges with significant judicial experience. There was not a single state without at least one justice who had significant judicial experience. Four states had all their justices with significant prior judicial experience.⁽¹⁴⁴⁾

It is hard to determine by looking at these statistics whether prior judicial experience is necessary or not. Certainly there are courts with fine national reputations where many of the justices had prior judicial experience, but others with fine reputations have less justices with prior judicial experience.

Although this study does not analyze in depth any other aspects of judicial background, it may be that in cases where justices did not have extensive judicial backgrounds they had other credentials that were equally important. For example, as already noted, some justices who did not have prior judicial experience had served in other important governmental positions like state senators, assembly members, cabinet officials, and other types of elected officials.

IX.  Educational Background

As already noted, I was able to identify the educational backgrounds of 316 of the justices for undergraduate institutions and 322 justices for law school.⁽¹⁴⁵⁾ The justices attended 187 different undergraduate schools and 107 different law schools. A list of those schools is included at the end of this section.⁽¹⁴⁶⁾

The fact that so many institutions are included is probably not surprising in light of the fact that the justices are chosen in all different areas of the country, and, in many instances they attended school in the state where they eventually sat as supreme court justices.

Some might have expected that the Ivy League Schools and the prestigious schools across the country would have been heavily represented. Although some such schools did have some significant numbers, they certainly did not dominate as they do on the current United States Supreme Court. The undergraduate schools of the current United States Supreme Justices include Stanford with four Justices, and Cornell, Georgetown, Harvard, Holy Cross, and the University of Chicago with one each. The law schools of the current United States Supreme Court Justices include Harvard with four, Stanford with two, and Yale, Columbia, and Northeastern with one each.

When looking at the state supreme court justices we see much more diversity. Yale has the largest number from any undergraduate school with eight, followed by the University of Iowa with seven, Dartmouth with six, and Harvard and Stanford with five each. But then, as Chart 8 points out, we move to a large number of varied schools with four and ultimately a great number with just one representative.⁽¹⁴⁷⁾

When looking at the law schools we find Harvard dominating with twenty-five, then George Washington with ten, followed by the University of Iowa, University of Michigan, and Yale with eight, and Georgetown with seven. Again we then see from Chart 9 that there are many different law schools with some representation.⁽¹⁴⁸⁾

Even though Harvard dominates in this category, its dominance here is small compared to its dominance on the United States Supreme Court. On that Court, forty-two percent of the Justices went to Harvard Law School, while less than eight percent of the state supreme court justices attended Harvard.

The explanation for the wide diversity of schools chosen by the justices is the fact that so many of the justices went to schools in the states where they were eventually to sit. My study indicates that 48.6% of the justices attended both undergraduate and law school in the state where they would eventually serve as justices. My study further indicates that 60.4% of the justices attended undergraduate school in the state where they eventually served and 59.9% of the justices attended law school in the state where they would eventually serve.

This preference for local schools has remained constant. In the study done by Susan Fino in 1975, Fino found that: "[m]ost of them attended in-state colleges and law schools, and nearly half (48.1 percent in 1975 and 46.0 percent in 1977) were born and educated, both college and law school, in their native states."⁽¹⁴⁹⁾

Chart 11 included with this section demonstrates that some states have had all of their justices educated within the state, while many have the majority of their justices educated within the state.⁽¹⁵⁰⁾ Yet, there are a number of states in which none of the justices were educated within the state.

Ultimately it does not seem surprising that the home state advantage would benefit those who seek judicial positions. While it is often thought that people in the United States are very mobile and move repeatedly, in fact the majority of the people in this country, sixty-one percent, live in the state in which they were born.⁽¹⁵¹⁾

X.  Conclusion

This study has demonstrated that over the last twenty-one years the make-up of the state supreme courts has changed drastically. While some may argue that this change has not come quickly enough, there still has been significant change. Perhaps the most important development has been the increase of women and minorities on these courts.⁽¹⁵³⁾ It is suggested that this will have a major impact on the future direction of the law. While this suggestion seems intuitively correct, there has not been enough time to adequately assess the effect of this change.⁽¹⁵⁴⁾

It is possible that in order to become a state supreme court justice, the applicant for the position must become so much a part of the dominant legal culture that, even though the person is a woman or a minority, he or she will not speak with a "different" voice, but will speak with the same voice as the existing legal culture. My survey indicated that, of the women who responded, only three identified themselves as liberals, and, of the minorities who responded, only two of them described themselves as liberals.⁽¹⁵⁵⁾ But only time and a great deal of empirical research will enable researchers to answer that question.

A less dramatic change came in the area of religion. The dominance of the Protestant religion, while still strong, was definitely less than it was twenty-one years ago. The number of Catholics increased and the number of "other" religions had increased slightly.⁽¹⁵⁶⁾

We have already seen a brief discussion of the role that the method of appointment can play in judicial decision making.⁽¹⁵⁷⁾ This argument will undoubtedly continue with strong arguments presented on either side of the issue. Those in favor of an elected judiciary will continue to argue in favor of the importance that justices reflect the views of the majority, and those in favor of an appointive system will continue to stress the benefits of independence and support for the Constitution. It also has to be noted, to the extent that the appointive system is praised, that the person doing the appointing can be more important than the system.

This article has also demonstrated that some things have remained the same. The dominance of the democratic party, while reduced, has continued.⁽¹⁵⁸⁾ This reflects the fact that the democratic party has been the more dominant party in recent history. Even if this trend turns around, it will take some time before such a change has a major effect. Because justices have relatively long terms, even a change in the national preference toward the republican party would not effect the judiciary for some years. Finally, the preference for justices with prior judicial experience and education in the home state has also remained stable.⁽¹⁵⁹⁾

XI. Appendices

Appendix A⁽¹⁶⁰⁾

**Underlined Religions are included in the Protestant Category.
***Italicized Religions are in the Other Category.

Protestant = 58.7%
Catholic = 29.6%
Jewish = 5.7%
Other = 6%

Appendix B

Appointment: Gubernatorial appointment with or without the benefit of a merit list of qualified candidates.

Mixed System: Missouri Plan or a variation thereof, in which there is an initial appointment with the requirement of a subsequent retention election based on the justices record.

Nonpartisan Election: Election/Popular election without party label on the ballot.

Partisan Election: Popular election with party labels (includes legislative election states).

Appointment Gubernatorial appointment with or without the benefit of a merit list of qualified candidates.

Connecticut: Justices are appointed to eight-year terms by the General Assembly upon nomination by the Governor from a list compiled by the Judicial Selection Committee. There is mandatory retirement at age 70.

Delaware: Justices are appointed to twelve-year terms by the Governor with consent from the Delaware State Senate from a list of candidates provided by the Judicial Nominating Commission.

Hawaii: Justices are appointed to ten-year terms by the Governor with the consent of the Hawaii State Senate from a list compiled by the Judicial Selection Committee.

Maine: Justices are appointed by the Governor with the consent of the Maine State Legislature for seven-year terms.

Massachusetts: Justices are appointed by the Governor with the consent of the Massachusetts Executive Council to serve until age 70.

New Hampshire: Justices are appointed by the Governor and Executive Council to serve until age 70 when retirement is mandatory.

New Jersey: Justices are appointed by the Governor with the consent of the New Jersey State Senate for seven-year terms with tenure granted upon reappointment. There is mandatory retirement at age 70.

New York: Justices are appointed for fourteen years. Justices are appointed by the Governor with the advice and consent of the New York State Senate from a list of candidates provided by the Commission on Judicial Nominations.

Rhode Island: Justices are appointed to life terms by the Governor and confirmed by the state legislature. All appointments are first nominated by the Judicial Review Committee.

Mixed System Missouri Plan or a variation thereof, in which there is an initial appointment with the requirement of a subsequent retention election based on the justices record.

Alaska: Justices are appointed by the Governor from nominees of the Alaska Judicial Commission and are subject to a retention vote for a ten-year term on a nonpartisan ballot in the first general election held more than three years after appointment.

Arizona: Justices are appointed by the Governor for initial two-year terms. Subsequent six-year terms are by retention vote. There is mandatory retirement at age 70.

California: Justices are appointed by the Governor and confirmed by the Commission on Judicial Appointments. Justices serve until the next gubernatorial election and then run unopposed on a nonpartisan ballot for election to twelve-year terms.

Colorado: Justices are appointed by the Governor from a list of candidates submitted by the Supreme Court Nominating Commission. Justices serve two-year terms and stand for retention in general elections for ten-year terms.

Indiana: Justices are appointed for initial two-year terms by the Governor from a list supplied by the Judicial Nominating Commission. Justices are then subject to a retention vote in the next statewide general election for a ten-year term.

Iowa: Justices are appointed by the Governor from a list of nominees selected by the judicial nominating commission. Justices are subject to retention vote for an eight-year term in the first general election following at least one year of service. Mandatory retirement at age 72.

Kansas: Justices are appointed by the Governor from nominations submitted by s Supreme Court nominating commission. Newly-appointed justices serve initial one-year terms and then face a retention vote for a six-year term in the next general election. There is mandatory retirement at age 70.

Maryland: Justices are appointed by the Governor and affirmed by the Maryland State Senate. After one year, appointed justices are subject to a retention vote in a general election for a ten-year term.

Missouri: Justices are appointed by the Governor from a list of candidates submitted by a nonpartisan Appellate Judicial Commission. Justices must stand for retention at the next general election occurring after one year in service for a twelve-year term. There is mandatory retirement at age 70.

Nebraska: Justices are appointed by the Governor from a list submitted by a judicial nominating commission. Justices run for retention in the next general election occurring more than three years after the appointment for a six-year term.

Oklahoma: Justices are appointed by the Governor from a list submitted by the Judicial Nominating Commission. Justices stand for retention in nonpartisan statewide election for six-year terms. Each justice must be from a different district.

South Dakota: Justices are appointed by the Governor from one of five electorial districts throughout the state for initial three-year terms and then run for retention in statewide elections for eight-year terms. Retirement is mandatory at age 70.

Utah: Justices are initially appointed by the Governor upon recommendation of a Judicial Nominating Commission and then run unopposed for retention for a ten-year term in the first general election occurring not more than three years after appointment.

Vermont: Justices are initially appointed for six-year terms by the Governor with the advice and consent of the State Senate from a list of nominees submitted by the Judicial Nominating Board. Thereafter, the newly-appointed justices are subject to retention votes by the Vermont General Assembly for six-year terms. Retirement is mandatory at age 70.

Wyoming: Justices are initially appointed by the Governor from a list of three nominees submitted by the Judicial Nominating Commission and subject to a retention vote one year after appointment. If retained, a justice serves for the remainder of the eight-year term and subsequent eight-year terms are by nonpartisan retention vote. Retirement is mandatory at age 70.

Nonpartisan Election Election/Popular election without party label on the ballot.

Florida: Justices are elected on a statewide nonpartisan ballot for six-year terms. Vacancies are filled by the Governor from a list submitted by the judicial nominating commission. Justices must stand for retention on a nonpartisan ballot in the next general election occurring at least one year after appointment. Retention elections are held every six years thereafter. There is mandatory retirement at age 70.

Georgia: Justices are elected in a statewide, nonpartisan elections for six-year terms. Vacancies are temporarily filled by the Governor from a list of candidates provided by the Judicial Nominating Commission. Temporary Justices are subject to a retention vote in the next general election for a six-year term. There is mandatory retirement at age 70 or on the last day of the term during which the justice turns 70, whichever is later.

Idaho: Justices are elected in statewide, nonpartisan elections for six-year terms. Temporary justices are appointed by the Governor from a list of candidates provided by the Judicial Council and are subject to a retention vote in the next general election for a six-year term. There is mandatory retirement at age 70.

Kentucky: Justices are elected in nonpartisan elections in separate districts for eight-year terms. Temporary appointments are made by the Governor to fill vacancies.

Louisiana: Justices are elected on a nonpartisan basis from six districts throughout the state for ten-year terms. There is mandatory retirement by age 70.

Michigan: Justices are nominated by political parties and elected in nonpartisan elections for eight-year terms.

Minnesota: Justices are elected in a statewide nonpartisan election for six-year terms. Vacancies are filled by the Governor from a list from the nominating commission. The new appointees serve until the next general election, occurring one year after appointment. There is mandatory retirement at age 70.

Montana: Justices are elected in statewide nonpartisan elections for eight-year terms. Vacancies are filled by the appointment by the Governor from a list of nominees submitted by the Judicial Nominations Commission and confirmed by the Montana State Senate.

Nevada: Justices are elected in nonpartisan elections for six-year terms. Vacancies are filled by the Governor and serve until the next general election.

North Dakota: Justices are elected in nonpartisan elections for staggered ten-year terms. Vacancies are filled by the Governor from a list provided for by the Judicial Nomination Commission or by special election called by the Governor. Appointees serve until the next general election, at which time the office is filled by election for the remainder of the term.

Ohio: Justices are nominated in partisan primaries, but run on nonpartisan ballots in general elections for six-year terms. The Governor may appoint justices to temporarily fill vacancies which occur between general elections. Retirement is mandatory at the end of the term when the justice turns 70.

Oregon: Justices are elected in statewide nonpartisan elections for six-year terms. The Governor may appoint a justice to temporarily fill a vacancy until the next general election.

South Carolina: Justices are elected by the South Carolina General Assembly for ten-year terms. The Governor may fill vacancies for unexpired terms not exceeding one year.

Virginia: Justices are elected by majority vote of the