This Article argues against the conventional wisdom about
nonpartisan judicial elections. In contrast to the claims of policy advocates
and the scholarly literature, we suggest that nonpartisan elections do not
necessarily encourage greater judicial independence than partisan elections.
Instead, nonpartisan elections create the incentive for judges to cater to
public opinion, and this pressure is particularly strong for the types of
issues that attract attention from interest groups, the media, and voters.
After developing this argument, we support it with new empirical evidence.
Specifically, we examine patterns of judicial decisions on abortion-related
cases heard by state courts of last resort between 1980 and 2006. Analyzing
nearly 600 decisions from sixteen states, we demonstrate that public opinion
about abortion policy affects judicial decisions in nonpartisan systems,
while no such relationship exists in states with partisan elections.
Accordingly, this Article suggests that in states with nonpartisan elections,
public opinion plays an underappreciated role in the courtroom.
