State supreme courts are less partisan than the federal courts, and are less partisan than legislatures and executive branch politicians at any level. Judicial partisanship is slowly rising in state supreme courts as well, however, especially in states with non-partisan elections for state supreme court judge.
The lower level of partisanship in state supreme courts probably reflects a lower proportion of public law matters with political salience on state high court dockets, relative to the federal courts.
It is somewhat surprising, however, that Missouri plan appointed state supreme court judges like those in Colorado are not, as intended by those designing and adopting this system, less divided on a partisan basis than state supreme court judges who are elected on a non-partisan basis, or who are appointed on a partisan basis. Judges elected on a partisan basis are the most polarized state high court judges on a partisan basis, although they are still less polarized than federal judges.
Research has documented elite polarization in a variety of areas, including Congress, the executive branch, and the federal judiciary. To my knowledge, however, no work examines whether state high courts have polarized or to what extent. This research fills that gap.
I create the largest and most comprehensive existing dataset on state supreme court judge party identification (running from 1980 to 2020), and merge those affiliations with an expansion of the ideology data from Bonica and Woodruff (2015). I measure polarization using two metrics: first, I examine the degree of ideological overlap between Democratic and Republican judges; and second, I track the ideological distance between the Democratic and Republican medians. I also examine whether the various methods of judicial selection are associated with different degrees of polarization.
I find a modest increase in polarization across the entire population of state supreme court judges, but they still lag behind other government institutions in that regard. Each selection method I consider is associated with at least some increase in polarization (as measured by either overlap or distance), but no single method stands out as having a particularly close relationship with a polarized judiciary.
Finally, I document increased polarization in states with nonpartisan elections as compared to others in the aftermath of the Supreme Court’s decision in Republican Party of Minnesota v. White.
Brett Parker, Polarization in State Supreme Courts, 1980-2020 (April 26, 2023) on SSRN.
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