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.
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?
Best,
Ben
Either is preferable to a game in which the referees are calling the plays.
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.
We seem to have reached a consensus by the tenth comment. If only Congress worked this well.
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?
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.
I suspect similar stories can be told of other states. What hath Strawbridge wrought?
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."
I'll agree with those above who say that Adler's "more modest" qualifier equals "agrees with me."
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.
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.
The court has only one consistent strict constructionist--Chief Justice Moyer. Cupp might fall into that category, he's just relatively new.
"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?
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