Does the need to campaign for re-election undermine judicial productivity?

Statistics on current opinion production by the Texas Supreme Court could certainly be interpreted that way. They show a notable disparity in the number of opinions delivered by members of the Texas Supreme Court who face a reelection contest this year, compared to those who do not.

MAY IT PLEASE THE VOTERS, NOT JUST THE COURT

Although many members of the Texas judiciary are first appointed to the bench by the Governor to fill a vacancy, they must win elections to remain on the bench. True also of the Texas Supreme Court, the state's court of last resort in noncriminal matters. Three current members of the nine-seat tribunal are up for reelection this year: Chief Justice Wallace B. Jefferson and two associate justices: Dale Wainwright and Phil Johnson. Although none of the incumbents was challenged in the Republican primary, all three face Democratic opponents in November.

HOW MANY OPINIONS DID THE JUSTICES OF THE SUPREME COURT OF TEXAS TURN OUT THIS YEAR?

From January through the end of June 2008 the Texas Supreme Court issued 45 signed deciding opinions. The combined total of concurring and dissenting opinions written by individual justices was 36, bringing the total tally to 81.

For the group of justices facing elections, the average number of signed opinions was 3.3, while the mean for those of their peers who do not face the voters this year is 5.8 .

If concurring and dissenting opinions are included in the computation, the respective averages for justices facing and not facing elections are 7 and 10 respectively. See Mid-Year Tally of Texas Supreme Court Opinions and Breakdown by Author . [revised 8/26/08]

The 45 per curiam opinions released over the course of the same time period are not included as their authorship is unknown. See previous post regarding the criticism that Texas Supreme Court Justices "hide" behind per curiam opinions).

One Justice who is currently on the campaign trail has only two court opinions to his name (plus three dissents and one concurrences), which averages out to one opinion written per month. At the other end of the spectrum, the most productive jurist who does not currently face reelection authored more than twice that many.

With a total of 15 signed opinions the only female member of the Court, Justice Harriet O'Neill, led the court in opinion output. O'Neill also disagrees with the other members of the court more than any of her brethren. Indeed, the number of separate dissenting and/or concurring opinions penned by O'Neill is not only the highest for the Court as a whole; it also exceeds the number of deciding opinions Jusitce O'Neill authored on behalf of the Court.

Justices Scott A. Brister and Don R. Willet rank second on the productivity scale. Each delivered eleven. With seven separate opinions out of the total, Justice Willett - like Justice O'Neill - often finds himself at odds with the majority.

At the other extreme, Justice David Medina, wrote no dissents or concurrences at all. While not up for re-election yet, Medina is under an ethics cloud as a result of the suspected arson at his Houston area home, for which his wife has been indicted. In view of his uncertain professional and personal future, Medina needs all the support he can marshal among his peers and has every reason to eschew acrimony.

DOES THE NEED TO CAMPAIGN AND SEEK VOTER APPROVAL AFFECT JUDICIAL JOB PERFORMANCE?

The observed discrepancy in opinion output based on whether a justice faces reelection pressures does not compel the conclusion that judicial elections are necessarily a bad thing. Indeed, it could be argued that justices would have every reason to work harder, not less, during the election season, lest the voters punish them for being laggards. That is, if job performance measured in terms of productivity becomes an issue in the campaign. There are some signs that this happening. Delay in decision-making in cases pending before the Supreme Court is one of the criticisms recently aired in the media, which have put the Chief and his associate justices on the defensive.

But the exigencies of partisan campaigns and elections can also be made a convenient culprit when the true reasons for institutional shortcomings - or those of individual office holders - lie elsewhere. Productivity figures have historically varied among the justices serving on the Texas Supreme Court - even in non-election years. This suggests that individual variations in role conception or work ethic may play a more significant role than institutional constraints. Not to mention that the justices of the fourteen courts of appeals routinely churn out vastly larger numbers of opinions per year - whether they are in campaign mode or not - thus demonstrating that there are no inherent limits for the Supreme Court to increase its opinion output by a multiple of its current rate.

A final caveat should also be added: It is expected that the Supremes will release a ream of opinions at the end of the current fiscal year, a practice for which there is solid precedent. The opinions expected for the end of August may yet alter the mid-year tally, and may thus also require reconsideration of any conclusions derived from preliminary numbers.