Billy Corriher: Elected judges rule against LGBT rights more often than appointed judges

  On September 30, Alabama Chief Justice Roy Moore was removed from office—for a second time—for defying federal court orders. The Alabama Court of the Judiciary suspended Moore until the end of his term for violating judicial ethics when he instructed lower court judges to ignore a federal court order to grant marriage licenses to same-sex couples. In January 2016—more than six months after the U.S. Supreme Court’s 2015 ruling in support of marriage equality—Moore ordered Alabama judges “not to issue any marriage licenses” that violate the state’s ban on marriage for same-sex couples. As federal judges handed down marriage equality rulings in recent years, Moore was the only elected judge who ordered lower court judges to defy the Constitution, though several other elected justices either delayed or suggested defiance in marriage equality cases.

  Although Moore’s bigoted views and his willingness to defy the federal government may have been popular with his conservative base in Alabama, they were inconsistent with his role as an impartial jurist tasked with upholding the law. Chief Justice Moore is a clear example of what can happen when constitutional rights are put to a vote through judicial elections. A new report from Lambda Legal sheds light on how judicial elections harm the rights of lesbian, gay, bisexual, and transgender, or LGBT, Americans. The report, “Justice Out of Balance,” found that “state high courts whose judges stand for election are less supportive of LGBT rights claims.” Lambda Legal has collected data on all state supreme court cases involving LGBT issues since 2003. Most of the cases involve constitutional challenges to marriage equality bans, but others involve adoptions by LGBT couples and transgender rights.

  The report found that the courts ruled most often against LGBT rights in the handful of states, including Alabama, that still choose judges in partisan elections. Partisan courts only supported LGBT rights in 53 percent of the cases studied, compared with 70 percent for courts chosen in nonpartisan races and 82 percent for courts whose judges are “granted lifetime tenure or reappointed.”

  Lambda Legal concluded that:

       It is time to stop putting our rights—most especially our constitutional right to due process—at risk by continuing the practice of electing state judges. The damaging consequences resulting from the explosion of political and special interest group involvement in judicial elections, and in particular, the impact on the legal rights [of] LGBT people, has become undeniably clear. … State court judges must decide cases based on constitutional and legal principles—not political pressure, popular opinion or fear of retaliation.

  In order for judges to be free to rule in favor of individual rights—even when it is unpopular—states must stop electing judges. Former Florida Supreme Court Justice Ben Overton said it was “never contemplated that the individual who has to protect our rights would have to consider what decision would produce the most votes.” Constitutions exist to protect individual rights and limit government power—even if a majority of voters feel otherwise.

  This is why the framers of the U.S. Constitution established a system that insulates judges, once on the bench, from political pressure. In The Federalist Papers, Alexander Hamilton argued for an independent judiciary that could counter majoritarian pressure: “It is not to be inferred … that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions.”

  Marriage equality is not the only issue in which judges feel pressure to rule a certain way. Alabama is the only state where judges still override jury decisions on the death penalty. And a recent study from the Equal Justice Initiative found that, during election years, Alabama judges are more likely to override juries’ life sentences to impose the death penalty. The study found that this was more pronounced when crime victims were white. In 2013, U.S. Supreme Court Justice Sonia Sotomayor cited this study and said that Alabama judges “appear to have succumbed to electoral pressures” in death penalty cases. Other recent studies have shown that courts tend to rule more often against criminal defendants during election years.

  These questions—life and death, discrimination against same-sex couples—are too important to be left to the ordinary political process. Chief Justice John Roberts recently said, “Judges are not politicians.” But electing judges forces them to act like politicians, putting the preferences of voters above the Constitution.

  About the author: Billy Corriher is the Director of Research for Legal Progress at the Center for American Progress.

  This article was published by the Center for American Progress.