Commentary: When Elected Judges Resist ‘Obergefell’

Judicial elections make it tougher for courts to protect the constitutional rights of individuals, two legal observers write in an Advocate commentary about some judges continuing to resist the Supreme Court’s marriage equality ruling this year.

Billy Corriher of the Center for American Progress and Eric Lesh of Lambda Legal mention recent resistance in Alabama and explain, “Politicized, big-money elections create more pressure on judges to rule in a way that pleases voters. Thirty-eight states conduct some kind of election for their supreme courts — and these races are increasingly indistinguishable from elections for the political branches. Alabama is a prime example: the state has a history of expensive, politicized judicial elections, with supreme court candidates raising more than $58 million since 1993.” The authors conclude:

“Judges must decide cases based on the law, not on politics, popular opinion, campaign contributions, or super-PAC spending. In order to protect individual rights, judges must sometimes issue unpopular rulings. While we expect governors and legislators to reflect the will of the majority of voters, judges must protect the constitutional rights of individuals, regardless of the political cost. Judicial elections make that exceedingly difficult — if not impossible.”

Corriher recently wrote a CAP paper linking state judges and magistrates who are resisting the Supreme Court’s marriage equality ruling in Obergefell v. Hodges with the fact this comes in states with big-spending, highly politicized judicial elections (see Gavel Grab). Lambda Legal is a Justice at Stake partner organization.