A National Partnership Working for Fair and Impartial Courts
Contact Us Home July 22, 2018
"The founders realized there has to be someplace where being right is more important than being popular or powerful, and where fairness trumps strength. And in our country, that place is supposed to be the courtroom."
Justice Sandra Day O'Connor

Are Judges Different?

Unlike partisan actors, such as lawmakers and governors, judges are expected to be impartial arbiters of the Constitution, and simply apply facts and law to each case. The 14th Amendment guarantees all litigants due process of law, including a neutral trial. Moreover, in most states, judicial ethics rules order judges to step aside if there is even an appearance of bias.

Recognizing that judicial office is different from legislative office, the District Court in Wisconsin cited "Wisconsin’s compelling interest in the election of justices to its highest court free from appearance of bias” (
See District Court decision).  Though the Supreme Court struck down triggered matching funds in publicly financed elections in Arizona Free Enterprise Club v. Bennett, they have also acknowledged that judicial recusal rules are fundamentally different from legislative recusal rules (read more).

This difference is central to the argument made in a Justice at Stake amicus brief in Wisconsin Right to Life v. Brennan. The brief argued that even if the U.S. Supreme Court struck down triggered matching funds for other elections, they should be retained for judicial elections, given the unique nature of the office. While voters expect legislators to be partisan advocates interested in specific outcomes, they expect judges to be fair and impartial arbiters of the law. Indeed, judges are asked to apply the law impartially even when the result may not be popular with voters. A similar argument was made in a Brennan Center for Justice brief.

When judges are subject to election, public financing can address concerns about judges being unduly influenced by the interests of big campaign contributors. The Wisconsin budget passed in June 2011 effectively ended public funding of Supreme Court judicial elections in Wisconsin. Questions about access to 14th Amendment due process rights arise when judges are required to garner large amounts of money from the private sector, because chances for perceived or actual bias increase. Public funding, merit selection, and strict recusal rules can ensure that special interest influence will not enter the courtroom.

Learn more:

JAS WRTL amicus curiae brief

Brennan Center amicus curiae brief
Judicial Recusal rules: Caperton v. Massey

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