The Influence of Re-Selection on Independent Decision Making in State Supreme Courts

Soon after I was appointed to the Arizona Court of Appeals in 2000, I attended a two-week session for new appellate court judges at the National Judicial College in Reno, Nevada. Among the speakers was former Tennessee Supreme Court Justice Penny White, who spoke about the need to consider how language used in opinions is understood by the public. She related her experience of losing her retention election in 1996 in the wake of the Tennessee Supreme Court’s controversial decision reversing a death sentence. Justice White pointed out that some language used in the opinion—for example, stating that the murder of a grandmother wasn’t “cruel”—was misunderstood and prompted misplaced outrage. Justice White’s message was to be careful with word choices. My takeaway was that Justices could be fired for doing their jobs if the public is unhappy with a single opinion. Having just surrendered a lucrative law practice to take the bench, I found Justice White’s cautionary tale chilling. As the years progressed and I found myself deciding publicly controversial cases, the ghost of Justice White’s retention loss occasionally hovered in my peripheral vision, taking more definite shape at times—for example when three Iowa Supreme Court Justices lost their retention elections in 2010 following a divisive same-sex marriage decision. But whenever that menace reappeared, I consciously, and hopefully successfully, banished it by considering the importance of adhering to my oath of office, preserving my integrity, and reminding myself that the worst thing that could happen is that I would be voted out of office and forced to return to the practice of law with my head held high.