pageok
pageok
pageok
A More Modest Ohio Supreme Court:

Several years ago, Ohio Supreme Court races were fiercely contested. Industry, labor and various legal groups sponsored vicious advertisements attacking candidates for the court and justices seeking re-election. One reason for this was because the Ohio Supreme Court had become very active in contentious policy disputes, ranging from education to tort reform. The court held the state's system for education funding unconstitutional four times, repeatedly invalidated legislatively enacted tort reform measures, and endorsed expansive theories of tort liability. With so much at stake, it was inevitable that interest groups would seek to influence the outcome of judicial elections.

In the last few years, however, the Supreme Court has backed away from this aggressive posture, largely due to changes in court personnel. The court has abandoned its effort to force the legislature to rebuild the state school funding system from the ground up, and has upheld legislative education reforms against constitutional challenge. It has trimmed back its most expansive tort liability rulings and now rejects most constitutional challenges to legislatively enacted tort reforms, such as caps on non-economic and punitive damages.

This change in the Ohio Supreme Court is documented in a new white paper I co-authored with my lovely wife, Christina, for the Federalist Society, A More Modest Court: The Ohio Supreme Court's Newfound Judicial Restraint, released today. The paper seeks to show that across a wide-range of issues, the Court has become more deferential to the legislature and less likely to impose its policy preferences on the state.

My own view is that this change in the Court's approach has greatly lessened the stakes in Ohio Supreme Court elections. Two justices are up for re-election this year, but we are not seeing the flood of outside advertisements that aired in prior election years. As the court has become more modest, judicial races have become less contentious.

While the Court is not the hot-button political issue it was in the past, the outcome of these judicial elections will affect the future course of the Court, and it is possible the Ohio Supreme Court could return to its old ways. While the Court is nominally all Republican (judicial candidates run in partisan primaries), it is divided 4-3 and 5-2 on many key issues, including the constitutionality of legislative limits on tort remedies, local home rule, and the application of Ohio election laws. As a consequence, this year's Ohio Supreme Court races are worth watching.

JRL:
I did receive a fairly nasty and slimy push poll call on behalf of Russo and Sikora, but have seen absolutely nothing on the race.
9.30.2008 12:02pm
Calculated Risk:
It sounds to me that this more "modest" Ohio Supreme Court is ruling in a way more favorable to political conservatives.

If I was only someone who cared about politics and not law, has the Ohio Supreme Court shown any modesty that a liberal would love that it would not have shown previously?
9.30.2008 12:04pm
Benjamin Davis (mail):
One person's judicial restraint is another person's judicial activism. One person's modesty may be a paean to the status quo to the detriment of those disfavored in that status quo.
Best,
Ben
9.30.2008 12:05pm
PLR:
A football game in which referees stand on the sidelines without blowing their whistles is not likely to be more satisfying than a game in which they blow their whistles excessively.
9.30.2008 12:17pm
Dave N (mail):
PLR,

Either is preferable to a game in which the referees are calling the plays.
9.30.2008 12:21pm
Ryan Waxx (mail):
Or awarding all the goals.
9.30.2008 12:37pm
ChrisIowa (mail):
This seems like a good example of why judges should not be chosen by election.
9.30.2008 12:42pm
Ryan Waxx (mail):
Not electing them doesn't always insulate them from playing god. It just insulates them from the consequences.
9.30.2008 12:50pm
Spitzer:
Jonathan - absolutely right. Whatever the political and judicial implications of judicial restraint, it is a plain fact that greater judicial activism (of whatever stripe) arrogates power to the judiciary and, consequently, away from the political branches of government. That is, judicial action eats into legislative power, and, it stands to reason, greater power increases rentseeking incentives.

Not only should greater judicial authority equate to more lobbying and more money in state judicial elections, but it should also mean greater political scrutiny of nominees to the federal bench.
9.30.2008 12:55pm
PLR:
PLR, either is preferable to a game in which the referees are calling the plays.

Or awarding all the goals.

We seem to have reached a consensus by the tenth comment. If only Congress worked this well.
9.30.2008 1:08pm
KevinM:
"Industry, labor and various legal groups sponsored vicious advertisements attacking candidates for the court and justices seeking re-election.... In the last few years, however, the Supreme Court has backed away from this aggressive posture, largely due to changes in court personnel."

This is presented as if the court had learned restraint, and that the partisan tone of judicial elections had cooled off as a result. As one who knows little about Ohio politics, I'd be curious to know whether that interpretation is complete. Does the new civility mean only that the "vicious advertisements" succeeded in altering the composition of the Court so it was more to the liking of the "vicious" parties?
9.30.2008 1:30pm
Ohio Lawyer:
Two justices are up for re-election this year, but we are not seeing the flood of outside advertisements that aired in prior election years. As the court has become more modest, judicial races have become less contentious.

I think the real reason is that the challengers have virtually no chance of winning against the sitting justices. Neither side wants to waste money on non-competitive races. And groups that would normally support the challengers don't want to needlessly tick off the sure winner.
9.30.2008 1:44pm
Anderson (mail):
Mississippi's supreme court has undergone a similar shift - $$$ from the US Chamber of Commerce has balanced (or swamped, depending on your source) the plaintiffs-bar donations, and the court tilts conservative now, with 3 pretty solid liberal votes out of 9.

I suspect similar stories can be told of other states. What hath Strawbridge wrought?
9.30.2008 1:51pm
trad and anon:
This is presented as if the court had learned restraint, and that the partisan tone of judicial elections had cooled off as a result. As one who knows little about Ohio politics, I'd be curious to know whether that interpretation is complete. Does the new civility mean only that the "vicious advertisements" succeeded in altering the composition of the Court so it was more to the liking of the "vicious" parties?
Well, it seems extremely likely that the ads attacking the incumbents were mostly driven by interest groups (business interests) whose bottom line was hurt by the court's pro-plaintiff tort rulings. Conversely, the ads attacking their opponents were a response by interest groups (plaintiffs' lawyers, labor unions) who benefited financially (or whose members benefited financially) from the court's rulings. Now that the court has backed off on its pro-plaintiff rulings, business interests don't have the same financial interest in attacking the incumbent justices.

Basically, the existence of fights driven by opportunistic special interests whose concerns are driven by their bottom lines strikes me as a very poor metric for judicial modesty. Whatever judicial modesty is, it's not "rulings that interest groups don't feel a need to go out of their way to oppose via election advertising."

Perhaps the opposition to the court's incumbents really was driven by a spontaneous grassroots movement but this seems extremely implausible.

Also, I agree with those who have pointed out that "judicial modesty" here seems to mean "rulings favorable to political conservatives."
9.30.2008 1:55pm
Angus:
Why should there be outside money anymore? The conservative pressure groups achieved their objective: driving out all Democrats and liberals. The result is a conservative Supreme Court with conservative political values and which rules accordingly. Mission accomplished.

I'll agree with those above who say that Adler's "more modest" qualifier equals "agrees with me."
9.30.2008 2:09pm
KeithK (mail):

A football game in which referees stand on the sidelines without blowing their whistles is not likely to be more satisfying than a game in which they blow their whistles excessively.


I prefer the hockey analogy over the football one (a football ref has to blow his whistle at the end of the play). In my experience a hockey game where the refs put away the whistles and only call the most egregious infractions is much more enjoyable than one where they stop play for every possible contact.
9.30.2008 3:05pm
Clem (mail):
I am an Ohio lawyer. After recent contentious elections the Court's personnel became significantly more sympathetic to the causes of business and insurance. The Court subsequently remained "very active in contentious policy disputes." The outcome of those disputes changed to favor business and insurance, as expected. There is no causal connection between the change in Court personnel and the modest use of advertising in this election. Rather, the calm that has occurred in this election is due to the absence of a strong candidate to oppose those who favor business and insurance interests. I suspect that this will change when that opposition candidate appears.
9.30.2008 3:21pm
Bpbatista (mail):
Ohio's legal system was becoming a bad joke. See Exhibit A, Scott-Ponzer decision. Ohio's courts were killing business and jobs and/or driving them to other states. People were sick of it and voted accordingly. Now the Supreme Court is more deferential to the Legislature and the Governor (who happens to be a conservative Democrat). Ohioans saw what an activist court could do and did not like it. Simple as that.
9.30.2008 3:38pm
Name Withheld:
It is simply not true that the Ohio Supreme Court has become "more modest." What the court has become is "ad hoc." Aside from Galatis, the decision that overruled Scott-Pontzer, the court doesn't bother to overrule its own precedents; it ignores them or distinguishes them on spurious grounds. Just today, the court issued a decision and three opinions in a termination of parental rights case, and all seven of the justices admitted the case had no precedential value whatsoever--if that isn't "activist" I'm not sure what is. In general, the court doesn't engage in any legal analysis recognizable to first-year law students. It deals almost exclusively in policy judgments, and not very well at that.

Professor Adler is right that the current court has not overturned as many state laws as courts of the recent past, and hasn't waded into some of the more controversial issues in Ohio law. And having read the paper, I can't argue with most of his analysis in regards to the various decisions he and his wife discuss (State v. Foster being a notable exception). But it is a mistake to conclude on that evidence that this court is "modest." It is a lawless court that happens to share the policy preferences of the legislature. And that's nothing to be proud of.
9.30.2008 9:29pm
Ohio Lawyer:
Name withheld is right. Follow some of the technical decisions, like what constitutes a void or voidable judgment, or what acts lower courts do when they "patently and unambiguously lack jurisdiction" (which triggers the right to a writ). The law is a mess because the court lurches back and forth. In these cases, either side of the bigger policy debates might benefit depending on the facts.

The court has only one consistent strict constructionist--Chief Justice Moyer. Cupp might fall into that category, he's just relatively new.
10.1.2008 7:10am
David Warner:
Ben,

"One person's judicial restraint is another person's judicial activism. One person's modesty may be a paean to the status quo to the detriment of those disfavored in that status quo."

And one person's relativism is another's nihilism.

Aren't there any other choices?
10.1.2008 10:51am
Ohio Lawyer:
Today, the "modest" Ohio Supreme Court created a new constitutional creature for Ohio--the en banc court of appeals. The majority conceded the weakness of its argument, but not intentionally. A provision of the Ohio Constitution requires courts of appeals to decide cases using panels "consisting of three judges. . . ." But the majority ruled that the provision "should not be taken too literally" and that they should not sacrifice "literalness for common sense. . . . " para. 14. Yes, that's what the "modest" court said: Don't take the words of the constitution "too literally." McFadden v. Cleveland State Univ., Slip Opinion No. 2008-Ohio-4914.

Also today, in a 3-1-3 decision, the court ruled that the standard of review of sentences is clear and convincing as to a few basic legal errors, but abuse of discretion for other errors. State v. Kalish, Slip Opinion No. 2008-Ohio-4912. That might be reasonable, but Ohio statute expressly says, "The appellate court's standard for review is not whether the sentencing court abused its discretion." Ohio Rev. Code Ann. Sec. 2953.08(G)(2).

Again, it's heartening to see that this "modest" court doesn't take the words of a statute "too literally." Maybe that's what judicial "modesty" is all about--judges using their personal "common sense" instead of relying "too literally" on the words of the governing statute or constitutional provision.

Sources:

Kalish
McFadden
Ohio Constitution
2953.08
10.2.2008 7:07pm