The Politics of State Constitutionalism

The following is a transcript of the panel “The Politics of State Constitutionalism,” which took place at Vanderbilt Hall, NYU School of Law, New York, New York, on Friday, Feb. 9, 2024, as part of the symposium, The Promise and Limits of State Constitutions. The transcript is edited for clarity.

This panel focused on the politics of state constitutionalism. The panelists introduced the audience to the political dynamics around state courts and state constitutions, discussed the role of money in judicial elections and efforts by state actors to retaliate against state courts, and laid out reforms to protect state judiciaries from political capture

Speakers:

• Chief Justice Wallace B. Jefferson (ret.), Texas Supreme Court
• Michael S. Kang, Class of 1940 Professor of Law, Northwestern Pritzker School of Law
• Douglas Keith, Senior Counsel, Brennan Center Judiciary Program
• Chief Justice Maureen O’Connor (ret.), Ohio Supreme Court
• Robinson Woodward-Burns, Associate Professor, Howard University

Moderator:

• Meryl J. Chertoff, Executive Director, Georgetown Project on State and Local Government Policy and Law, Georgetown University Law Center

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Meryl J. Chertoff: For this last panel, we’re joined by five wonderful speakers. The Honorable Wallace B. Jefferson was appointed to the Supreme Court of Texas in 2001 and was named chief justice in 2004, serving in that role until 2013. He was the first African American justice on the court. Currently, he’s a partner at Alexander Dubose & Jefferson and sits on the State Court Report board. Maureen O’Connor became the first female chief justice of the Ohio Supreme Court in 2011, serving in that role until 2022. Currently, she’s spearheading the campaign Citizens Not Politicians, a constitutional amendment to reform redistricting in Ohio slated for the 2024 ballot. Professor Michael Kang is the Class of 1940 Professor of Law at Northwestern Pritzker School of Law. He’s a law professor who’s a nationally recognized expert on judicial elections and campaign finance.

Doug Keith is senior counsel in the Judiciary Program at the Brennan Center for Justice. He’s an expert on state constitutional law, judicial selection, spending in state supreme court elections, and efforts by legislatures to politically capture state judiciary. Robinson Woodward-Burns is associate professor at Howard University, a political science professor who focuses on constitutionalism, federalism, and voting rights. He’s written about the history of state constitutional revisions and is currently working on a book about constitutional hardball. And I’m Meryl Chertoff, executive director of the Georgetown Project on State and Local Government Policy and Law and an adjunct professor teaching about state and local government at Georgetown, also formerly director of the Sandra Day O’Connor Project on the State of the Judiciary.

Chief Justice Jefferson will remember when we both worked with Justice Sandra Day O’Connor — the other Justice O’Connor — she was sometimes asked which Supreme Court opinion she regretted joining. Her answer was Minnesota Republican Party [v.] White, a case in which the Supreme Court sided with a candidate for state judicial office in a case challenging the canon of judicial ethics in Minnesota that prevented candidates for judge from offering opinions on political issues in the run-up to elections. The canon was intended to shield judicial candidates from litmus-test polling by interest groups. When the canon was struck down by the Supreme Court on First Amendment grounds, it became one in a line of cases, along with Citizens United, that led to a tsunami of money into state judicial races, a development that some of our panelists today will no doubt have opinions on.

This leads to three challenges: Who are the judges? How free are they to judge? And who gets the last word in the branches of government? One of the things we heard about yesterday was culture. And formerly, there was, in general, a culture of respect for courts, a culture of respect for the separation of powers, and that has eroded. There has been a backlash in legislatures against state constitutionalism. Legislatures have tried to do end runs around their own constitutions and the judges who interpret them to advance what are sometimes highly ideological and often minoritarian positions.

As Professor [Helen] Hershkoff said in the beginning, a longtime observer who was watching 15 years ago would have said that it’s shocking to imagine that today we would be asking our panelists about run-ins they’ve had with efforts to impeach judges whose rulings displease legislators, make it harder for the people to amend their own constitutions to reflect the popular will, abuse direct democracy tools that were meant to give the people more say in their state constitutions, and capture redistricting commissions to freeze in perpetuity what was meant to be temporary partisan advantage by one party or another.

To that end, we’ll frame some of this with some of the basics of state judicial selection and money in state judicial races, then ask some questions on theory to the academics on our panel, and move on to show the real-world impact with our two former jurists. If you have questions, please provide them either on cards or via text and we’ll take them at the end.

I want to start with Douglas Keith of the Brennan Center. Doug, the U.S. is the only country in the world that elects judges. Thirty-nine states elect at least some of their judges. What changes have you seen in judicial elections over the past decade? And how have efforts to take partisanship out of judicial elections and bolster confidence and legitimacy of state courts succeeded or failed?

Douglas Keith: Well, first, I want to echo everyone’s thanks for all the work that went into putting this event together. It has been such a tremendous two days. We’re so grateful to have you all here. Judicial elections have been a bit of the elephant in the room the last two days, I think, although some people have gestured at the elephant. But I think it’s worth thinking about where they came from and how far they had strayed from that.

So, most generally, state judicial elections — at least at the high court level — were adopted in pursuit of separation of powers or judicial independence more generally. The idea was that systems in which governors and legislators were appointing judges led to systems in which judges were too close to the political actors in the state and just generally too enmeshed in the state’s politics. Judicial elections, at least in some states, as you have heard, have really come quite far from that.

Fast-forward, and the last few decades, judicial elections have generally been pretty sleepy affairs. They didn’t get a ton of attention or money. And then, starting in the 2000s and the 2010s, business interests in states and partisans and ideological interests started to pay increasing attention to how important these courts were either for their financial bottom lines or for their policy goals. In fact, the leading group in spending in state supreme court elections nationally, the Republican State Leadership Committee’s Judicial Fairness Initiative — they were pretty explicit when they started their group back in 2010, 2012, and they said that they had had success selecting governors and legislators and attorneys general across the country, but those folks were having their policies run into a brick wall in state courts, and the goal was to have that stop happening.

So we saw money grow over this period and records shattered in a number of states. But even all of that looks fairly quaint compared to where we are in the post-Dobbs era. So the Brennan Center for Justice, for 20 years, we published reports every two years about spending in state supreme court elections. And I just published our 2022 report last week, which I know feels like ancient history to some folks, but what we found in that analysis is that the amount of money in the 2022 cycle of state supreme court elections was almost double what any midterm cycle before it had ever seen. There was about $100 million in spending, $45–46 million from opaque outside groups, which is more than they have ever spent in a state supreme court election cycle, and records broken in a number of states. And that’s 2022.

That does not include the Wisconsin Supreme Court election from spring of 2023, which itself shattered records and was more than double what had ever been seen in a state supreme court election before, even if you adjust for inflation. The Wisconsin Supreme Court election, for context, would have ranked as a top-10 Senate race in that same year. So these races are getting the kind of national attention and money that you sometimes see in other races.

And I wrote our 2018 report about spending in judicial elections, which — I used hyperbolic language about how much money we’d seen that cycle. The Wisconsin election saw more money than every race that year combined. The Pennsylvania Supreme Court election, which took place a little bit after Wisconsin and did not get as much press attention, may have in fact been the second-most expensive judicial election ever. So that would say that the first two elections which took place in a fully post-Dobbs cycle were likely the most and second-most expensive state supreme court elections ever.

Far from making these less partisan over the years, states have made them more partisan. In North Carolina and Ohio, legislators added party labels to ballots in states where they previously had nonpartisan judicial elections. Voters — states eliminated or defunded public financing for judges in states where that was accessible to judicial candidates. And voters themselves have rejected efforts to move away from elections and move to other forms of judicial selection.

And these — the election outcomes, including the recent ones — have already had real jurisprudential impact. In North Carolina, moments after the court changed hands, we saw the new supreme court reverse a set of recent decisions issued by the prior court. In Ohio, which we’ll hear lots about, the court changed directions after the new justice took their seat on the court. And in Wisconsin, we’ve already seen the court consider cases that were decided by its predecessor court.

I also want to mention — we’ve talked a lot about judicial elections. Appointment states do not get off the hook from this increased political attention. In New York and Connecticut, we saw governors have to withdraw their candidates after the members of their own party said that the folks that the governors had nominated to be judges on the state’s highest courts were not sufficiently progressive. In South Carolina, as you heard in the previous panel, after the state supreme court found a right to abortion under the state constitution, the legislators who are responsible for selecting justices in that state turned around and identified a justice who would help the court change course — and, ultimately, they did shortly thereafter.

This all raises really key questions about what courts can and should look like in this new era. Are we going to see different judges, ones who are willing to endure this partisanship or perhaps embrace the partisan vetting that will come with these elections? What does stare decisis mean when a court decision is only good until the next election? Does any competent litigation strategy also include an electoral strategy? Mostly, I just want folks to know that, as some people turn their attention to these courts for the first time, these courts are not blank slates. They have been shaped by these dynamics for years — dynamics that are only becoming more intense in this moment.

Chertoff: We’ll get back to that very interesting question about stare decisis and what that volatility means. But I did want to throw the question to the two chief justices, O’Connor and Jefferson, who have run for judge. Chief Justice Jefferson, you ran in Texas on a party line. And in Ohio, Justice O’Connor, you ran without party affiliation until towards the end of your term when the law was changed, as Doug was saying, making — going from a nonpartisan to a partisan election. You’re both very independent-minded, of course, but do you think that the party endorsement makes a difference to your colleagues when they run for judge?

Wallace B. Jefferson: Well, a party endorsement does make a difference in a state where you run on a party ticket. And so in Texas, just for example, there has not been a Democrat in statewide office since 1994. So if you want to be on the Supreme Court of Texas or the other high court in Texas, the Court of Criminal Appeals, you’ve got to be Republican and you have to win a Republican primary.

And so I ran three times in Texas. They’re statewide elections. And we’ve heard a lot about Texas, so I wanted to just give you a sense of what it’s like to run in an election in Texas. What do you do? You campaign. You travel across the state. In Texas, there are 254 counties. It takes about 10, 11 hours to drive from one part of the state to the other. So you’re on Southwest Airlines. And where do you go? You go to law firms. You go to editorial boards. You go to civic organizations. You go to universities and schools. You go where any big crowd is, and sometimes you walk in little parades. You’re trying to talk to the people who will put you in office, hopefully.

And what do you ask? When I campaigned, I would — I’d go and say, “How am I doing? How is the court doing? Where do you think we can improve, either in the efficiency of our docket, the cost of litigation? How is that going? Are we making it on access-to-justice issues? Tell me.” I was there to get feedback. And then I would explain how the court operates. I would talk about the procedures, discretionary court, what are the important factors in deciding whether to take a case or not. I would take notes.

So when I first started campaigning, I would go, say, to Beaumont, Texas. And there, a local judge had done e-filing on his own. He’d figured out a program, worked with the local bar, and got rid of paper in his courtroom. And I’m thinking, well, that’s interesting; why are we not doing that statewide? I’d go and talk to the courts of appeals, and they had a case-management

system that made it much more efficient for the processing of cases. I went to a juvenile court and saw kids with their parents, usually single parents, who were in court because they had violated some school rule — not violence, but Texas had a system where they issued Class C misdemeanors. I would go to South Texas and to the colonias, where they lived in shacks. It was a huge amount of poverty. They had legal problems that were not being addressed. And I went to medical-legal partnership organizations along the border. And so I was learning things.

And all the while, as I’m talking to these groups, I was urging the reform of the way we elect judges — that we shouldn’t be doing it the way we’re doing it; that there ought to be a merit-selection system. But that has been tried and failed many times.

And I would talk to the people that make a difference in elections. And those are the money people, right? So they’re general counsel. They’re heads of corporations. They are mayors and they are state representatives and state senators. And you know what I would do? I would tell them, “Here’s what the judiciary needs. We’re not being funded well enough. The compensation is too low for judges. We can’t retain and keep and attract the best judges.” And I would say, “When state reps, when the governor comes and calls upon you, tell them how much you think the judiciary is important and do what you can to help us.”

And so, as a result, when I got elected and in office, I had public hearings for statewide e-filing, which reduced the cost of litigation, and everything that’s filed now is public record that people have access to. I brought cameras in the courtroom at the Supreme Court of Texas, so if you live in El Paso, you don’t have to get on a plane to watch an oral argument. I put all the briefs online. I worked with the Judicial Council to lobby the legislature to stop the insane idea of issuing in Class C misdemeanor tickets to these kids. And they’re mostly Black and brown kids who are being expelled and suspended from school because they wore their hat backwards or they yelled at a teacher.

So what I’m saying is, the electing judges — it’s a horrible idea, but — (laughter) but the other part of it is, you hear. You get out there. You get criticized. You hear the criticism. And if it’s valid — if I thought it was valid, I would try to address it and make it better. You would see around the state judiciary courts and judges doing it right, and you could incorporate that statewide.

I had more votes than most of the committee chairs in the House and Senate that I testified in front of. And so they knew that I had political skills and I had the connections to talk to people that mattered to them. And that helped me when I was trying to promote an administration of justice that worked for all of the people.

And so it is a horrible system, but there is a way that you can use it to your advantage to improve our system of justice. I’ll stop there.

Chertoff: Can I just provide a little bit of context? Because you used the expression “merit selection.” And for us, we’re buffs, so we know what we’re talking about, but just to add a little context. So [there are] three ways that state judges can get elected. More or less on the federal system style, which is a nomination process and then Senate confirmation. Second way, partisan elections. And then the third way is what’s called retention election, merit selection, or sometimes called the Missouri Plan, which is where the judge is selected from a panel by the governor and then submits to a retention election after a period of time. So three different styles of doing it, and that’s what Justice Jefferson was alluding to. Justice O’Connor, you’ve also run for judge.

Maureen O’Connor: Yes, I have. I also ran for lieutenant governor — I was lieutenant governor before I was on the court. And then, prior to that, running for judge in the county where I lived originally. I was both a common pleas court judge, which is an elected position, and I was also the county prosecuting attorney, which is an elected position. So I’ve had a lot of election experience, both partisan and judicial, which is technically, when I was running, nonpartisan.

Now, in Ohio, they just recently — and it took effect last election in ’22 — they put labels, “R” or “D,” on the ballot where they were not there before. And so I had always run for a judicial election without a partisan label, which I think if you’re going to have elections, that is the preferred way to do it. In our state, in 2020, I think it was — 2018 or 2020 — some Republican judges lost, both in the appellate and on the supreme court. And that angered some of the legislators who were also Republican, as you can imagine. And I had a conversation with one, and he was telling me how they’re going to put — they’re going to pass a law and they’re going to put the partisanship labels on the judiciary. And I said, “Why are you doing this?” And to quote: “We lost a lot of goddamn good judges, and we’re going to do something about it.” I said, “Isn’t that democracy?” You know? I mean, what do you mean you’re going to do something about it? Well, they did do something about it, and they put party labels on. And I think in Ohio that makes a difference, and it did make a difference.

And the dynamics of electing judges in Ohio, we have the rural counties and then we have the cities. We have Cleveland, Columbus, and Cincinnati. And those three Cs, as they call them, have put Democratic candidates for judge in office consistently. It’s very difficult, for example, in Cuyahoga County, where Cleveland is, if you are a Republican — even once you are appointed by the governor and then you run for the seat, which you have to do in the next general election, even without a party label. Previously, the Republican — it was extremely difficult to retain a seat, just because in Cuyahoga County and Columbus and Cincinnati, they take the party ballot into the polling place and will use that as their guide.

For the most part, people don’t know who they’re voting for in the judiciary. It’s a name game, and that historically has been true. There’s a very large voter drop-off when it came to electing judges. If you looked at the drop-off in some counties, it was 50 percent of a drop-off because — I would ask people why they didn’t vote for judges, and they said, “Well, we don’t know enough about them and so we don’t vote for them,” and that’s all there is to it.

Now, keep in mind that on two separate occasions in Ohio, the people were asked to change the system of selection for the judiciary and go to a retention system. And these elections that were put to the people of Ohio were done exactly 50 years apart, and with the same result: two-to-one, they want to retain their ability to vote for judges. All judges from municipal court, common pleas, our appellate level, and the supreme court, they wanted to retain, even though there was a huge voter drop-off. It didn’t make a whole lot of sense, but retention elections will not come to Ohio in the near future, I trust.

So you have to — you know, you have to run for office. You cannot run as an independent and be elected statewide in Ohio for the judiciary. It’s just— you need the support of a party. You need what a party can do for a candidate financially and also with the endorsement process. And that’s really important when you’re running statewide, or when you’re running in multiple counties for an appellate district, or even in your own county, for your common pleas courts. It matters.

But I don’t want to say that because you’re endorsed by a political party, whether it be a Republican endorsement or a Democratic endorsement, that you are promising anything to the party — that people may perceive, and party leaders may perceive that you’re taking their endorsement, so you’re going to be a “good Republican” judge or justice or chief justice, or you’re going to be a “good Democrat” on the same courts. But it’s been my experience that judges do not feel that they have to vote on cases a certain way because there’s a Republican way to decide it and a Democratic way to — it’s the merits. It truly is the merits. And I would say that without reservation, the majority of the judges do decide cases based on the law, based on the facts, and based on their oath of office.

Now, having said that, I did the same thing — going around the entire state campaigning. I was lieutenant governor. There was an opening on the supreme court and I decided that I was going to run for the supreme court, and that was in 2002. And I had to do the same thing — go around, curry favor with the editorial boards and the local parties and, you know, the movers and shakers in the legal community and various organizations. And you — it is an education. I wish everybody could do it once, but only once (laughter), because anybody that says that they enjoy campaigning, don’t vote for them because they’re not smart enough to do the job. (Laughter.) It is grueling. It is absolutely grueling. But it’s necessary. But you do get a flavor for the people when you’re talking to groups, picnics in the summertime.

And so anyway, I was elected to the court. I was then reelected in — or, I was elected in 2002; I was reelected in 2008. We have six-year terms. In 2002, when I ran, I secured 86 out of 88 counties. And in the next election, in 2008, I had won all 88 counties in the state, which was kind of unheard of, and got more votes than Barack Obama, who carried the state. (Laughter.) So that was my claim to fame. I’ve always been the highest vote-getter on the ballot. When I’m on the ballot, I’m the highest vote-getter of any candidate. (Laughter.) And I won all these — the elections that I ran for the court.

It got to the point then, in 2010, when I was running for chief justice — because that’s how the chief gets elected in Ohio, or selected, is through the ballot. The people of Ohio vote. And it’s not your colleagues get together and decide who’s going to be chief; that would never have worked. But I ran, I was elected in 2010 to be chief justice, and it came six years later — 2016 — for reelection, and I didn’t have an opponent. It was the best race of my life. (Laughter.) It was wonderful.

But in 2014, I put out a white paper of five different ways that we could improve the judiciary. And this was after talking to judges and talking to people who used the court, both parties as well as attorneys, etc. And this was a blueprint of how we can improve the judiciary and how we can improve the court system, and it was dead on arrival with the legislature, so the improvements that I wanted to see never took place. But you don’t get to be chief justice and be a leader in the state without making improvements to the system, because that’s basically why you’re elected to be chief justice — to take a look at the system and to make improvements. And we did that. I’m very proud of the record that I established as chief justice.

And we are age-limited, and that’s why I’m no longer chief justice. You have to quit when you’re 39. (Laughter.) But no, actually it’s 70. You can’t run again if you’re 70. (Laughter.) And so I reached the precipice and had to retire from the court. But —

Chertoff: And there’s a little more to the story than that, which we’ll come back to, that you were kind of waited out. But the two judges have made it seem not that much of a horror show as those of us who study the role of money.

And I want to move on to Professor Kang, who has just written with a coauthor a book on that very topic — the influence of money. And one of the things that has been floating out there is the idea that money somehow has a role in jurisprudence, but it’s been hard to pin down exactly how that works. Back in the day, we suggested maybe there was an appearance that judges were being influenced, or there was some kind of correlation. But, Professor Kang, in Free to Judge, using data, you show that it’s more than incidental. What did you find?

Michael S. Kang: Thanks, Meryl.

My coauthor Joanna Shepherd and I have just written a book, Free to Judge. It’s a — my publisher would be mad if I didn’t mention that it’s available at an Amazon.com near you. (Laughter.) And really, the book caps off a decade and a half worth of studies, about 10 articles where we’ve really studied the relationship between campaign contributions to state supreme court justices and the subsequent decisions that they make once on the bench. And we find it’s predictive: money is very predictive of decision-making. That relationship is very robust. We’ve studied it lots of different ways — different types of contributors, political parties, business interests, broad ideological coalitions from the left and from the right. We’ve looked at different data, at different times, different eras. We always find this robust predictive relationship.

It’s not determinative. Money doesn’t decide the cases entirely. Other stuff matters, obviously. Law matters a lot, and we have a nice study on that. Party matters; we have a study on that. Ideology, lots of other things matter, but money matters, too. Money does matter.

And what the book really focuses on, which our earlier studies had not, is exactly why it matters, what the causal mechanism was. And the truth was, when we did a lot of these earlier studies, we thought, it doesn’t really matter exactly what the causal mechanism is. The money is helping produce judicial decisions in favor of the contributors, so the money is getting what it wants, and we weren’t too concerned about exactly how that happened. But there are two major theories about why the money matters, and they’re a little different.

One is a selection story, which is that, say, there’s pro-business donors. Well, they’re going to give money to candidates that they think are pro-business. The money helps them get elected. And once they’re on the bench, it’s not surprising when they have pro-business decisions. So the money is lining up with the decisions, but it’s a result of selection. And people think that might be troubling because the money is really playing a role here, and it’s producing decision-making toward a certain set of interests.

But people were more worried about a second kind of causal mechanism, which is a biasing story. And that story is that judges, whether it’s consciously or unconscious, they realize that to keep their jobs, they have to get reelected at some point in election systems. And so they may skew their decisions toward the interests of their past contributors because they know they’re going to need support in the future, and the most likely sources of that support are people who have given them money in the past. So that’s a biasing story, and it’s a little different, and I think most people thought that’s a little bit more worrisome.

Now, methodologically, it turns out it’s hard to sort between those two stories. Because in both of those, if you look at the money and the decision-making, they tell the same story. They should line up, right? It’s going to be the same result. And so, to figure out or tease out what’s going on, you’ve got to find a set of judges who are just like all the other elected judges but they’re no longer able to run for reelection. And what we did was look at mandatory retired judges.

There are a set of judges that are lame ducks, that are past mandatory retirement age, but they’re still on the bench and they can make decisions, right? And they’re just like other judges — they were elected in the same way, they had to raise money in the same way — but now reelection’s off the table. And so biasing can’t make sense for them because they don’t have this reelection influence on them. And what we can do is compare those lame-duck judges with all the other judges and see what the difference is, and the difference ought to tell us about what role reelection is playing in terms of influencing judicial decision-making. And when we compare the lame ducks with the rest of the judges, we find that the predictive effect of money drops off from anywhere from half to two-thirds. What that suggests to us is reelection matters — that it is producing an effect here on judicial decision-making, and when judges don’t have to worry about reelection anymore, it really frees them up to decide the way they want, and reelection is a pressure, a systemic pressure that is biasing judges.

Now, I should say here we’re not accusing judges — you know, I’m sitting on a panel with two elected judges (laughter) — we’re not accusing judges of being corrupt or consciously biased or anything like these —

Jefferson: We don’t have contempt power anymore, so you can go ahead. (Laughter.)

Kang: I’m really glad for that. (Laughter.) It’s a systemic pressure, right? And just like any sort of elected official, they have incentives and those incentives matter. It might not be that they’re thinking about this and changing the way they’re deciding cases in a conscious way, but it’s this crocodile in the bathtub. It affects their behavior, even if it does so in subtle ways. The point of the book was to figure out what the role of reelection does and whether it biases judicial decisions. And what we find in our data is we think it does.

Chertoff: You’ve also written about criminal sentencing, and it brings to mind one of the prior panels. You have talked about how coming up close to election may affect criminal sentencing, how ads — how hit ads can affect criminal sentencing. You want to talk a little bit about that? If this was my classroom, this is where I would start to play one of the ads from Wisconsin or Michigan, so we’ll have to rely on you to recapitulate a little bit of —

Kang: We have a different set of studies that look at the role of TV ads, and then the second study looked at attack ads — ads that go negative on state supreme court candidates. And what we’re interested in is whether the intensity of state supreme court elections in a state really affects the way that the state supreme court justices subsequently decide cases — the idea being as intensity goes up, as there’s more attack ads, there’s more ads generally, reelection becomes less certain, and the judges who want to get reelected think about that a little bit more, and it may affect their decisions. And what we find is that as ads and attack ads go up in a state, in the state supreme court elections in a state, they get more conservative on criminal appeals. That’s predictable if you look at the literature.

Why criminal cases? It’s not because the donors care most about criminal cases, right? A lot of the donors with the money, they care about tort reform or they care about business cases. But the judges and the donors and the people who make the ads, they know that criminal cases are really the focus of the TV ads and the attack ads. And if you think about the ads that Meryl would show her class, they’re almost certainly criminal cases that are the focus. It is that some judge let a killer go, and later they killed another person; or someone who committed sexual assault and then goes on to do something horrible. That’s really the fuel for these ads. And so judges, quite understandably, have a tendency to become more conservative in criminal cases, not only as election ads go up in a state, as attack ads go up in a state, as the election approaches, all of these things that make them more conscious about reelection make them more conservative on criminal appeals specifically.

Chertoff: Professor Woodward-Burns, one of the things that we heard over the last two days is the idea about the amendability of state constitutions, and about how that creates a feedback loop between the people, and the people as a constraint on the judiciary and on other branches of government. And you have written about the amendments to constitution, the amendability as an attractive feature, but also, you are not that optimistic about the amendment process. Why is that?

Robinson Woodward-Burns: Sure. And I’d like to just start by stating how happy I am to see a full room on state constitutionalism. Only 52 percent of Americans think state constitutions exist. (Laughter.) I assure you, they do exist. I have dozens of them. I collect them, which is a strange thing to say in public. (Laughter.) There’s one I don’t have, which is the Alabama state constitution, which is 389,000 words long. It’s the size of a phone book, which for the students in the room was a kind of book that had phone numbers in it. (Laughter.)

Chertoff: And that’s after revision. That’s after revision.

Woodward-Burns: Right. After revision. And I don’t have that because the shipping costs were too high. It’s too heavy. (Laughter.)

So why is the Alabama Constitution so long? I promise, I’m going somewhere with this. The document’s so long because in Alabama, counties can pass amendments to the constitution. They’re amendments salient to individual counties, so you get a very long document. And Alabama is the longest document, but on average, state constitutions are longer than the U.S. Constitution, in part because they’re easier to amend. Most states allow you to pass an amendment with somewhere between either a simple majority or a three-fifths majority of the vote. It’s easy to initiate amendments through citizen initiatives; 18 states — depending on whether you count Mississippi — 18 states have the citizen-initiated constitutional amendment. In Massachusetts, you can initiate an amendment with only 3 percent of the electorate in any given year. And then you can also entirely replace state constitutions. There have been 412 attempts to write entirely — 412 bodies empowered to write entirely new state constitutions across American history. You have this really active, energetic trend in American state constitutional politics.

And from that, some commenters have noted that states can serve as laboratories of democracy, as Justice Brandeis noted 90 years ago in the New State ICE Company decision. Justice Brennan almost 50 years ago noted that state judiciaries can innovate and have rights protections exceeding federal minimums or floors. More recently, Judge Sutton has noted that you have dual venues between federal and state constitutional courts. So there is space for innovation, and that’s especially attractive in moments when the federal Congress is sclerotic, is gridlocked, is incapable of expanding voting rights protection particularly. In moments when the Supreme Court may be issuing decisions that may be sort of hostile, it’s tempting to look to the Supreme Court — I’m sorry, to the state constitutions. And I think that usually works.

I’ll briefly tell three stories — two stories in which it worked, two stories from American history; and then I’ll say why it may not be working in the current era anymore. Again, there’s this idea that if you’re blocked at the federal level, you can push your reforms through the states. And that’s largely what I tried to test. And what I found in my first book, Hidden Laws, was that state constitutions serve as a venue for resolving fundamental national controversies.

I’ll tell a story about the fight for the female franchise. That’ll be the first story. And I want to reiterate, or I want to emphasize that the female franchise was won at the state level through state constitutional amendments before it was won as a national amendment. There was an attempt for a national amendment. In 1866, Elizabeth Cady Stanton, Susan B. Anthony, Frederick Douglass, they formed the American Equal Rights Association to petition for the franchise for women and for Black people in the United States. And what happens is, Congress passes the 14th Amendment, which in Section 2 penalizes states that disenfranchise men on the basis of race — the first mention specifically of gender related to the franchise there, which is a setback for suffragists. And then, in the 15th Amendment, you get a prohibition on race-based disenfranchisement that does not include sex. So there are these petitions to Congress through the 1860s–1870s for a female franchise amendment.

In 1875, in the Minor v. Happersett case, the Supreme Court says that the federal Constitution does not include a positive affirmation of the right to vote, striking down an attempt to enfranchise women. You have a Court that’s largely hostile, just like Congress is hostile, to extending the right to vote on — to prohibit gender-based disenfranchisement.

Suffragettes start looking to the states, and that’s where, actually, the first victories happen. Wyoming grants the full franchise in 1890, Colorado in 1893. A few states grant partial franchise to women in school-board elections or municipal elections. In 1893, suffragettes combine forces into the National Woman Suffrage Association to really push this state-by-state strategy. And they get big wins in California in 1911, Kansas the following year, 1912. And so suddenly, it looks like it might be possible to build a national coalition, a majority of states, to push Congress in favor of this long-desired franchise amendment.

In 1916, the head of the National American Woman Suffrage Association [NAWSA], Carrie Chapman Catt, brings together the state-level chiefs in a back room in their Atlantic City convention, and she puts a map on the wall and says, “These are the states we need to target to win three-quarters of the states necessary to ratify a suffrage amendment.” And I want to point out, there’s some unexpected consequences to this. They essentially decide to skirt the South and petitioning southern legislators. They realize that in the Deep South especially, the Democratic Party has control; they’re never going to enfranchise Black women. The NAWSA decides simply to move away from the South and try to build a coalition without southern Black women. That’s one of the kinds of outcomes of this state-by-state strategy. They decide instead [to] circumvent the South.

And they’re largely successful. By 1917, 29 states enfranchise women in some capacity. And members of Congress are aware of this. Supermajorities in both the House and the Senate, members now come from states that support or enfranchise women, and those members of Congress have in their constituency women who would vote them out of office for failing to support an amendment. Fifty-five percent of Electoral College votes come from franchise states. And so, finally, at the end of the decade, the 19th Amendment passes, largely because states have resolved this question.

The second story I want to tell works similarly, and that’s about the poll tax. Between 1890 and 1902, every ex-Confederate state has a convention in which it writes a new Jim Crow constitution, and all of them include poll taxes. These poll taxes require that you pay a dollar or two when you come to the polls. And they are prohibitively expensive, especially for the states’ working poor, who in Deep South states are disproportionately Black. They are race-neutral facially; they don’t mention race. In 1898, in the Mississippi v. Williams case, the Supreme Court says, “This doesn’t violate the 14th or 15th Amendment.” And they proliferate. By 1921, 25 states have a poll tax.

The National Committee to Abolish the Poll Tax, the AFL, the CIO, the NAACP, and the Southern [Conference for] Human Welfare all petition Congress for an anti–poll tax statute, and Congress refuses. It fails in 1938. In 1941, the Supreme Court refuses to hear a case from Texas to overturn the poll tax. After that, Franklin Delano Roosevelt tells his attorney general, Francis Biddle, that we’re not going to have the Department of Justice push poll tax reform; it’s a losing cause. Harry S. Truman says the same thing. You see in the White House, in the DOJ, in the Supreme Court, and in Congress a real skepticism that you can actually repeal the poll tax.

Instead, reformers look to the states. The National Committee to Abolish the Poll Tax looks to the states, and you get successes there. In 1934 in Louisiana, Huey Long, the state’s progressive governor, repeals the poll tax, which is disenfranchising more and more people during the Depression, including some of his white constituents. In 1944 in Georgia, Ellis Arnall, a gubernatorial candidate, pushes to win by expanding the franchise [with] the repealing of the poll tax. Tennessee, Arkansas, Georgia, in between 1944 and 1946, repeal the poll tax, which disenfranchises Black servicemen returning home. By 1953, only three states still have the poll tax: Virginia, Arkansas, and Texas. And because they’re constitutionally fixed at a dollar or two — you can’t change them — inflation has made them dead letter. By 1953, the poll tax is inoperative because of this hard work by unions and special interest groups at the state level to repeal the poll tax.

Chertoff: Is that a kind of horizontal federalism, so it’s policy dissemination amongst the states? Where are we now with that?

Woodward-Burns: I want to make one small point about that, and then I’ll say where we are to wrap. The Supreme Court wouldn’t overturn the poll tax for another 13 years. It had been dead letter for over a decade before the Supreme Court actually jumped in and took action, which suggested that at the national level with the poll tax, not a lot of push for reform.

I think we’re in a different kind of period though now, because state legislatures are a lot more sclerotic. If you look at, nationally, the difference between the proportion of votes cast in the average state and the proportion of state legislative seats won, on average, if you look at states nationally, the Republican Party wins 4.6 percent more state legislative seats than voters give them. That’s a result of gerrymandering. That’s a result of malapportionment, stuff I can talk about, and also a little bit of vote suppression. This kind of state legislative entrenchment means that state legislators are less dependent on the voters to hold their seats. Incumbents are very safely entrenched.

This is kind of the third point. Because of that state legislative entrenchment — the entrenchment of state legislative incumbents — we see the rate of amendment declining over time. The rate of state constitutional replacement has wholly flatlined; there hasn’t been an entirely new state constitution since Rhode Island in 1986, putting aside Alabama’s recent reforms. The rate of state constitutional replacement has declined. And because of that, I think the states are now beginning to fail as a venting mechanism, and that gives me some concern.

Chertoff: And, Doug, what about supermajority requirements for amendments?

Keith: In the judicial context, we’ve seen backlash against courts [that] engage in robust state constitutionalism. This has shown up in a number of ways: impeachment, limiting courts’ authority, changing venues that hear state challenges to legislation based on the state constitution. And all of this is not because these legislators, somewhere deep down, they hate courts; they just dislike the idea of — or are trying to limit the idea of there being this other tool with which the public or some other institution in the state can go against the will of the legislature.

In my mind, the supermajority requirements that we are seeing considered, or even put up to voters in Ohio, for amending state constitutions are just part of that cloth. It’s just another example of legislatures that are having a lot of success in some ways, but frustrated that there remain other avenues or vehicles for the public to effect change that the legislature disagrees with, and they’re trying to close those doors.

Chertoff: And that might have something to do with the independent state legislature theory, that this is all overreaching by the legislature. And, Justice O’Connor, you’ve seen that kind of overreaching firsthand with your work on gerrymandered maps in Ohio. Please tell us more about that.

O’Connor: Addressing what happened this past August in Ohio, the legislature decided it would be a good idea that any citizen-initiated constitutional amendment require 60 percent of the vote to pass as opposed to 50-plus-one, which is what it’s been since 1912 when this citizens’ initiative was passed after a constitutional convention. And curiously, in January of ’23, the legislature had decided that they would do away with all August elections, and then they all of a sudden needed to have an August election in order to put this 60 percent on the ballot. And they did that because we had a reproductive rights constitutional amendment on the November ballot. And my initiative — and when I say mine, I’m involved with an initiative called Citizens Not Politicians, and that will be on the ballot this November. And it will take — it will revolutionize, I think, the way districts are drawn in the state of Ohio and get rid of gerrymandering. That’s what the goal is.

The legislature, knowing that these two pieces of constitutional amendment were on the horizon, decided that they were going to have an August election, and it backfired. They thought, people aren’t going to come to the polls — everybody’s on vacation or not paying attention. Well, about 57, 58 percent of the people said “No, thank you” to the 60 percent rule, so that was torpedoed. And then what it did was give momentum for the vote in November with reproductive rights because that passed at 57, 58 percent in the state. And my hope is that that momentum is ongoing and will be reflected in the ballot issue for redistricting reform in Ohio.

We need redistricting reform because Ohio is one of the worst-gerrymandered states in the country. And we have a redistricting commission by constitution. In 2015 and in 2018, we had two amendments to the constitution, and it was sold to the public and anybody else that these two amendments were going to take care of gerrymandering and everything’s going to be fair in Ohio. And actually, they were doomed from the get-go, because they had a redistricting commission that was packed with politicians — the governor, the secretary of state, the auditor, the leadership of both the Senate and the House, both the majority and the minority — so seven members, five out of those seven were Republican. The Republicans had control of the House and the Senate, and a supermajority is what the goal was. And the districts were being drawn to effectuate and maintain that supermajority.

There’s a process. The redistricting commission draws — they don’t themselves draw a map, but they have map-drawers, and the constitution laid all that out. Well, to make a long story short, there were five maps that were presented to the supreme court, all of them declared unconstitutional, and two congressional maps, also unconstitutional. And they were working —they were on the fourth map, working towards the fifth. There was also a parallel federal case that the right-to-life group filed with the federal courts, and what they were complaining of is that we will be disenfranchised because there will not be a valid map in time for the November election, and so we won’t be able to vote — federal court, you need to step in and you need to fix this for Ohio. The federal court said in April, “OK, if there’s not a constitutional map presented to the supreme court by May 31 that Ohio is going to use the third map that was presented to the supreme court — that the supreme court admittedly declared that unconstitutional — but you have to have a map, so you’re going to use the third map.” So how do you — how incentivized do you think the legislature or the redistricting commission was to give us a constitutional fifth map? Not at all.

We’re still operating under unconstitutional maps in Ohio which perpetuated the gerrymandered districts, which gave the Republican Party a supermajority, which means that they can override any veto of the governor. To quote the president of the Senate, “We can pretty much do whatever we want.” Isn’t that a wonderful sentiment for an elected official?

Anyway, there’s now Citizens Not Politicians. And I would be remiss if I did not thank the Brennan Center for their work on the drafting of the constitutional amendment. Yurij Rudensky and Michael Li spent hours, days working on this — actually, months. We started in February and had a finished product, I think, in August. Common Cause was involved and the Harvard Election Law Clinic. We had, you know, Zooms with nothing but brainiacs is what I would say.

It was a beautiful thing to watch happen and to draft this constitutional amendment. We also had an attorney from Ohio, Paul De Marco — again, donating all their time and effort. We came up with a constitutional amendment. They’re gathering signatures right now. We need 413,000 ballot signatures. They have to be gathered by July. And it will be on the ballot. I’m confident that the signatures will be gathered and presented and we won’t have any problems in that direction. I think —

Chertoff: Oh, sorry. I thought we could bring Justice Jefferson in also on this. On the question of these citizen initiatives, Justice Jefferson, Texas doesn’t use the citizen initiative to place constitutional amendments on the ballot for the people to decide, and that means the buck stops with your state court. Do you think that has an impact on state constitutionalism, since the courts are in dialogue with the legislature but there’s no democratic check of the people’s veto through initiative and referendum?

Jefferson: Well, I think it does. The constitutional amendments in Texas have to originate in the House and then get passed in the Senate, and then it’ll go to the state citizens for a vote. And then, the question will come to the supreme court in a disputed matter. And the court has recently — and it’s one of the reasons I’m here and support very strongly the project that the Brennan Center has for state courts — there are members of the court that really want to focus these days on the state constitution. And they want to do it in terms of originalism, going back to the 1876 constitution, and determine what the framers meant by the text and terms there. And those are the disputes that are coming to the court right now.

We’ve had some on jury trial rights. We’ve had some on gender dysphoria and then the statute that disallows medical treatment in that area that was argued just a couple weeks ago that involves a question of the expanse in scope of the state constitution. And the court has said — many of the justices have said, and in fact I brought a quote for one of these. This had to do with jury trial, suggesting that litigants really go back and research. This was on the right to jury trial in a trust modification, kind of a boring area, but the question was what did the term cause mean in the 1876 constitution. The supreme court, in a concurrence with three justices, said on remand the Court of Appeals should study the meaning of the language chosen by the framers and adopters of the judiciary article’s guarantee in its historical context. It encourages the parties, practitioners, legal historians, and other interested amici in this case and others to contribute their level best assessment of what the 1876 constitution meant by “cause,” relying on contemporary resources.

Well, what does that do? It makes you go back and figure out: What are the sources? Where do you find the original meanings? What was preserved? Are there transcripts of debates? What did the dictionaries say in 1876? What’s the legal history that we can find? What were the legislators saying at the time? A same and similar process to those that look toward original meaning in the U.S. Constitution. And I think that is going to be the future of a lot of litigation and important litigation about the preservation of rights in the state of Texas.

Chertoff: Let’s do a lightning round and then move on to questions from the audience. So, to each of you, if you could make one recommendation to protect the ability of judges to interpret state constitutions faithfully and beyond politics, what would it be Professor Kang?

Kang: Mine’s pretty obvious. It comes out of our book, which is to get rid of reelection. Have a single long term for state supreme court justices so they don’t have to worry about these reelection pressures; have the term be long so that the average tenure of a state supreme court justice doesn’t change. And the way we explain this in the book is we don’t want to change the incentives for the job; we want the same type of people. We think judges are good people that really work hard and want to do the right thing; they’re just subject to these kinds of really intense political pressures, and we want to get rid of that. I think Alicia Bannon here at the Brennan Center calls it “one-and-done.” You can run, you have a long term where you’ve got job security, but you don’t have to worry about reelection and worry about the next election where you’ve got to raise money.

And the truth is, if you look — if you talk to — we talk to a lot of judges in our work, and especially judges that preceded the kind of hyperpolarized politics we have today. They’re a little bewildered by the politics today because what’s going on is — in my other job studying election law, partisanship dominates politics, and that’s just spread to state supreme court elections. And judges like Marsha Ternus, who lost a retention election in Iowa, what she told us was, “I wouldn’t have done this job at the beginning if it was always like this; this isn’t what I signed up for.” And we’re going to lose people like that because the job now is fundamentally different than it was 25 years ago.

Chertoff: Justice O’Connor, one thing?

O’Connor: I would agree, the one-and-done is probably the fairest and most effective way to guarantee that judges are free from not just political pressure, but the pressure of having to run again, etc. So I would concur in that. It would have to be hammered out in a certain, length of time that would make it attractive to someone who is not necessarily retirement age from a practice — in other words, someone who’s practiced law for 30 or 40 years and then decided, I’ll go to the judiciary. Because I would like to see younger people being involved in making the judiciary their career.

Chertoff: Robinson?

Woodward-Burns: I’d like to reiterate the call for a one-and-done system. Judicial elections are an artifact of the Jacksonian era. They predate large sort of interest group organization and money by a century, century and a half. And so I share the sentiment that that would be a healthy kind of reform.

Chertoff: Justice Jefferson?

Jefferson: Merit selection with a bipartisan commission that appoints judges and sends a list to the governor, and then serve retention elections after that. And I wouldn’t mind a long-term retention election to be done. That would be fine with me. But the problem with electing judges is, it’s not based on merit; it’s based on either, in Texas, party affiliation; in many states, your name ID. “Jefferson,” that was a good name — thanks, mom and dad. (Laughter.) Or the amount of money that you raise. And it makes the public really lack confidence in the impartiality of the courts. I would move to a merit selection system.

Chertoff: Doug?

Keith: We advocate at the Brennan Center for one-and-done terms and for using a nominating commission to, if you can actually move away from elections, that is well-designed and represents voices from across the state to select justices. That is the best way to go in our current moment.

But I do want to say that, as someone said before, we have to deal with originalism. I think we have to deal with judicial elections. They are sticky in the states where they are. And to that end, for me what is crucial is that participants in the justice system understand that everything that comes out of state supreme courts today is often shaped in the electoral landscape or is shaped in legislatures that are pushing back and constraining these courts. And so going to court and getting a win is not enough if you’re thinking about state courts today.

Chertoff: To use a sports metaphor, if you own the ref, you get to call the game, right? OK, a couple of questions from the audience, and there were some good ones. Do elections increase diversity on the bench? How can states with other selection methods ensure that people of color get on the bench? That’s been an ongoing debate.

Jefferson: I’ll say that in — even though we have an election system in Texas, many judges are appointed first to vacancies. And the governors, the most recent governors have been thinking about diversity along those lines. It was a Republican governor that appointed me, the first African American on the court, and I served with another African American judge and a Hispanic judge. Now, the diversity has since sort of gone away, mostly through people leaving the bench and the current governor not appointing as diverse a slate. That’s the kind of pressure you have to put if it’s an appointment system on the commissions, have them — Jimmy Carter, when he had commissions around the state to look at Article III judges, one of his commands was, you look at diversity. And up until Carter, there had been very little diversity, and he exploded the number of women and minorities that served on federal circuits and U.S. district benches. You’ve got to look at who’s making the appointments and [stress] diversity of all kinds.

Chertoff: That goes to judicial nominating commissions, and the way that judicial nominating commissions do their work, and who is on those commissions — people who are dedicated to the idea of fostering diversity, right?

Jefferson: That’s right.

Chertoff: OK, other thoughts on that?

Kang: I think there are empirical studies that look at whether elections produce diversity vis-à-vis appointments, and I think the general finding is that elections do produce more diversity. And so you have to weigh that in, and I think part of our judgment about keeping elections is not that, you know, elections are the greatest way of doing things; it’s — there are a lot of different ways of doing things with a lot of different values involved — but elections are really popular, and they’re really just not going to go away in the states that have elections. [We’ve] got to think about what’s pragmatic and what’s an improvement and potentially feasible.

I think Goodwin made the point yesterday: appointment systems have their own politics. And the truth is the federal system — I’ve thought a lot about this. I was on a commission that thought about changing the U.S. Supreme Court. And one problem that we kept running into when thinking about problems is the nomination process is such a mess. It’s not really a good model (laughs) for states. If you’re going to redo the system, it’s probably not the federal system that you’d want to mimic.

Keith: I agree with that. I will just note that I would be remiss if I didn’t mention my colleagues published one of those empirical studies about selection systems. And while this is really hard to study because our state supreme courts just don’t reflect the public that they serve, the finding was that appointment systems, at least in recent years, did seem to more often lead to diversity on the courts than electoral systems did. There are some hypotheses as to why that is, and some of those relate to the money in the elections. Candidates of color in particular, potentially, were more likely to face attack ads — and in particular, this outside money I spoke about — than white candidates. I think it’s really important to think about how our elections are operating today.

Jefferson: Although in the cities in Texas, Harris County — that’s Houston — there were more Black women elected judges than ever before in the history of our state. In San Antonio, Hispanic women are being elected. And in Dallas as well, it’s more diverse. And that’s under a pure partisan election system. There, Democrats are winning. Part of it depends on what state you’re talking about and what the demographics are of your urban areas.

Chertoff: That also raises another interesting dynamic, which is that the judges elected statewide, the demographics may be a little bit different than in these local races. And the quality and character of the local judges may be a little — the dynamics will be different there, correct?

I think we have time for one or two more. There are a couple of questions that kind of go together: What are the consequences of the increased national attention on the perception of legitimacy of judges, and also the verticalization, the increased role of national parties on elections? What influence does that have, both in the way judges do their work but also the perception of how they do their work?

O’Connor: Well, I’d just like to mention that respect and trust in the judiciary in this country is at an all-time low. That’s not a surprise. And there is very little distinction in the minds of most Americans between state court judges and federal judges. If you’re talking about “the supreme court,” they immediately think of the United States Supreme Court. There’s been a lot of attention paid to Justice Clarence Thomas and, you know, disclosures, etc., and I don’t think anybody disagrees that that’s disturbing. And when — even in the state court, when one judge does something unethical (which happens) and is caught — or even criminal — that reflects poorly on the judiciary.

But I think one of the biggest threats to the judiciary in this country has been, since 2016, the attacks leveled by the former president. And even up until a couple days ago, the behavior and disrespect shown for judges and the legal system has never been as predominant as it is now. I think there’s a ramification in the public about how the former president is treating the judiciary and the judicial system, and that’s largely responsible for, I think, the demise of trust.

Jefferson: And once he does it, then other public officials do it.

O’Connor: Yeah.

Jefferson: And that’s what’s been happening. And this is the biggest threat to state and federal courts and to our system of justice, because if you don’t have an independent judiciary, we can’t survive in the way the framers designed our independent three branches of government. I just don’t see it working.

Chertoff: And last question to Justice O’Connor. You were actually threatened with impeachment. What about the impeachment of justices as one of the hardball tactics?

O’Connor: They didn’t like the way I voted on the redistricting cases, so the legislature drew up articles of impeachment. They never filed them. It was, I think, political drama. I didn’t really take it seriously. To my way of thinking, they were just insulting themselves. And it shows — these are lawmakers, and they should know the constitution and they should know the law of Ohio, and clearly they didn’t. So that was, as I said, political drama. But I don’t know of other judges that have been threatened with impeachment or have been impeached. Again, if that is talked about, it’s just political drama.

Chertoff: And they waited you out until you retired. They —

O’Connor: No, no. That’s not true. They — yeah, I retired. But when you say “waited me out,” we had the decision by the federal court on the redistricting cases well before I retired. And so that was a done deal, unfortunately.

Chertoff: Doug, last word?

Keith: I’ll just say on the impeachment point, a note of optimism: there have been other justices that have been threatened with impeachment for their decisions in Pennsylvania after the state supreme court found that the districts violated the constitution for unconstitutional partisan gerrymandering. In Wisconsin, before a justice even heard a single case, justices were threatened with impeachment. And maybe unique to the court context, there is still a broad bipartisan understanding that these things are inappropriate, and so they failed in both of those states. They failed in Ohio as well. I am at least heartened that some of these worst attacks right now, they are not succeeding, and the public seems to understand that courts are at least supposed to be a little bit different than the other branches of government.

Chertoff: OK. So at least there’s something left to the culture. Thank you all very much. (Applause.)

(End.)