The ongoing debate whether state judges should be elected -- something Justice Ruth Bader Ginsburg recently told the National Association of Women Judges she opposed -- would benefit from an historical perspective.
Professor Jed Handelsman Shugerman provides this background in his Harvard Law Review article, "Economic Crisis and the Rise of Judicial Elections and Judicial Review."
He notes the movement to elect judges first "swept the country in the late 1840s and 1850s" with the express purposes "to limit legislative power, to increase judicial power, and to strengthen judicial review." He continues, "The reformers got results: elected judges in the 1850s struck down many more state laws than their appointed predecessors had in any other decade."
Judicial elections thus were designed to have the counter-intuitive effect of restraining excesses by elected officials. "Oddly, the first generation of elected judges was the first to justify judicial review in counter-majoritarian terms, in the defense of individual and minority rights against abusive majorities and the 'evils' of democracy."
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