Bushra Sultana is a digital engagement intern at The American Prospect.
By Bushra Sultana | Oct 14, 2016
The chief justice of Alabama’s highest court, who once called lesbian parents “immoral,” “detestable,” and “inherently evil,” has been suspended without pay following his February directive to the state’s probate judges to stop issuing marriage licenses to same-sex couples.
State Supreme Court Chief Justice Roy Moore’s removal from the bench last month came within a day of the release of a report by nonprofit LGBT rights group Lambda Legal that pointed to broad ideological biases by state Supreme Court judges. The report specifically singled out Moore, who had run for his seat on an anti-marriage equality platform, and whose marriage license directive violated a federal court order. Moore was suspended from the bench for the remainder of his term by a unanimous vote of the state’s nine-member judiciary court.
“When it comes to courts, win or lose, LGBT people need to know that there isn’t a thumb on the scales and that we haven’t been shut out of the process,” stated the report, dubbed Justice Out of Balance.
The report lays the blame for anti-LGBT judicial bias on the growing practice of installing state Supreme Court judges via election rather than by appointment. Today, 38 states elect their judges either via competitive or retention elections—a practice unique to America. And in recent years, the amount of spending in judicial elections has exploded; the money spent on state Supreme Court elections has more than doubled in the past decade.
“Far-right groups and powerful special interests are working to game the system by stacking state courts with judges who will rule in accordance with their agendas,” the report states. Moore himself had already been removed from the bench in 2003 for refusing to follow a federal court order to remove the display of the Ten Commandments from the state judicial building. The voters elected him again in 2012.
“The pressures of running for re-elections, courting donors, and securing endorsements often force candidates to take extreme positions,” wrote report author Eric Lesh in a blog post following the study’s release. Tellingly, appointed justices ruled in favor of the LGBT community 82 percent of the time. By contrast, elected judges ruled in favor of LGBT claims only 53 percent of the time.
In Iowa, three Supreme Court justices faced the wrath of right-wing activists when they sought re-election in 2010. Having unanimously ruled to legalize same-sex marriage in Iowa the previous year, the judges faced attacks led by Bob Vander Plaats, an influential Iowa conservative leader. All three justices lost their elections.
Judicial elections are also fueling a “stunning lack of diversity” on state Supreme Court benches, the report found. Racial minorities and women are under-represented, and only ten openly gay or lesbian justices serve on state Supreme Courts. Importantly, nine of these ten justices were appointed, and all nine appointees were installed by Democratic governors. The upshot is “a significant lack of trust in the courts among LGBT and respondents with HIV,” according to the report.
“A diverse bench increases public confidence in the court,” said Lesh in an interview. He added: “When you see the courts don’t reflect the diversity of the community that they serve, it has an impact on public confidence.”