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Ought judges be independent of democratic pressures, or should they be subjected to the preferences and approval of the electorate? In this book, Bonneau and Hall use empirical data to shed light on these normative questions and offer a coherent defense of judicial elections.

Judicial elections in the United States have undergone a dramatic transformation. For more than a century, these state and local elections were relatively dignified, low-key affairs. Campaigning was minimal; incumbents almost always won; few people voted or cared. Over the past quarter century and especially the past decade, however, a rise in campaign spending, interest group involvement, and political speech has disturbed the traditional paradigm. In the "new era," as commentators have dubbed it, judicial races routinely feature intense competition, broad public participation, and high salience. This Article takes the new era as an opportunity to advance our understanding of elective versus nonelective judiciaries. In revisiting this classic debate, the Article aims to make three main contributions. First, it offers an analytic taxonomy of the arguments for and against electing judges that seeks to distinguish the central normative concerns from the more contingent, empirical ones. Second, applying this taxonomy, the Article shows how both the costs and the benefits of elective judiciaries have been enhanced by recent developments, leaving the two sides of the debate further apart than ever. Finally, the Article explores several deep ironies that emerge from this cleavage. Underlying these ironies is a common insight: As judicial elections achieve greater legitimacy as elections, they will increasingly undermine the judiciary's distinctive role and our broader democratic processes. There is an underappreciated tradeoff between the health of judicial elections and the health of the judiciary, the Article posits, that can help recast the controversy over the new era.

Judicial elections in the United States have undergone a dramatic transformation. For more than a century, these state and local elections were relatively dignified, low-key affairs. Campaigning was minimal; incumbents almost always won; few people voted or cared. Over the past quarter century and especially the past decade, however, a rise in campaign spending, interest group involvement, and political speech has disturbed the traditional paradigm. In the "new era," as commentators have dubbed it, judicial races routinely feature intense competition, broad public participation, and high salience. This Article takes the new era as an opportunity to advance our understanding of elective versus nonelective judiciaries. In revisiting this classic debate, the Article aims to make three main contributions. First, it offers an analytic taxonomy of the arguments for and against electing judges that seeks to distinguish the central normative concerns from the more contingent, empirical ones. Second, applying this taxonomy, the Article shows how both the costs and the benefits of elective judiciaries have been enhanced by recent developments, leaving the two sides of the debate further apart than ever. Finally, the Article explores several deep ironies that emerge from this cleavage. Underlying these ironies is a common insight: As judicial elections achieve greater legitimacy as elections, they will increasingly undermine the judiciary 's distinctive role and our broader democratic processes. There is an underappreciated tradeoff between the health of judicial elections and the health of the judiciary, the Article posits, that can help recast the controversy over the new era.

One of the most important recent developments in American legal theory is the burgeoning interest in "popular constitutionalism." One of the most important features of the American legal system is the selection of state judges – judges who resolve thousands of state and federal constitutional questions each year – by popular election. Although a large literature addresses each of these subjects, scholarship has rarely bridged the two. Hardly anyone has evaluated judicial elections in light of popular constitutionalism, or vice versa. This Article undertakes that thought experiment. Conceptualizing judicial elections as instruments of popular constitutionalism, the Article aims to show, can enrich our understanding of both. The normative theory of popular constitutionalism can ground a powerful new set of arguments for and against electing judges, while an investigation into the states' experience with elective judiciaries can help clarify a number of lacunae in the theory, as well as a number of ways in which its logic may prove self-undermining. The thought experiment may also be of broader interest. In elaborating the linkages between judicial elections and popular constitutionalism, the Article aims to shed light more generally on some underexplored connections (and tensions) among theories and practices of constitutional construction, democratic representation, jurisprudence, and the state courts.

One of the most important recent developments in American legal theory is the burgeoning interest in "popular constitutionalism." One of the most important features of the American legal system is the selection of state judges – judges who resolve thousands of state and federal constitutional questions each year – by popular election. Although a large literature addresses each of these subjects, scholarship has rarely bridged the two. Hardly anyone has evaluated judicial elections in light of popular constitutionalism, or vice versa. This Article undertakes that thought experiment. Conceptualizing judicial elections as instruments of popular constitutionalism, the Article aims to show, can enrich our understanding of both. The normative theory of popular constitutionalism can ground a powerful new set of arguments for and against electing judges, while an investigation into the states' experience with elective judiciaries can help clarify a number of lacunae in the theory, as well as a number of ways in which its logic may prove self-undermining. The thought experiment may also be of broader interest. In elaborating the linkages between judicial elections and popular constitutionalism, the Article aims to shed light more generally on some underexplored connections (and tensions) among theories and practices of constitutional construction, democratic representation, jurisprudence, and the state courts.