While much of the nation’s eyes are focused on who will hold the keys to the White House, Illinois voters also have another important decision on their ballots on Nov. 5: who will sit on their state courts.
Voters have the ability to cast a ballot for state court judges who will have the power to shape the lives of residents in enduring and profound ways.
Here’s how: Our nation will elect the next president to a four-year term. However, Illinois Supreme Court justices and Illinois appellate court judges are elected for 10-year terms, while circuit court judges have six-year terms. And in Illinois, after a judge or justice serves their first term, they are eligible to run for another term via a retention election. In our federal system, members of the judiciary are appointed through nomination by the president and confirmation by the Senate, and serve in their term for life.
Illinois voters will elect two Supreme Court justices and nine appellate court judges, and decide whether to retain four sitting appellate court judges. These members of the judiciary will significantly outlast the term of the next president.
In addition to serving longer terms than presidents, these judiciary members will shape the civil rights landscape in Illinois. For instance, the Illinois Supreme Court in September ruled that “the odor of burnt cannabis, alone, is insufficient to provide probable cause of police officers to perform a warrantless search of a vehicle.”
And last year, the Illinois Supreme Court upheld the state’s ban on assault weapons and issued a ruling upholding a law abolishing cash bail, making Illinois the first state in the nation to do so and ensuring that defendants do not remain in jail merely because they are too impoverished to post bond.
In places like Illinois, the judiciary at times may uphold civil rights and increase public safety. But I fear the long-term sustainability of a system where the civil rights of vulnerable communities are dictated by a judiciary that is subject to an electorate, and who may fear reprisal for ruling in fair, impartial and constitutional ways.
Protecting ‘those who are unpopular’
The future of the civil rights of “unpopular” communities cannot rest in the hands of elected politicians in robes. Here’s why:
Earlier in my career, I clerked for two members of the federal judiciary: the honorable Ivan L. R. Lemelle in the Eastern District of Louisiana in New Orleans, Louisiana; and for Chief Judge Roger L. Gregory of the U.S. Court of Appeals, 4th Circuit in Richmond, Virginia.
During my clerkships, I assisted my judges as they decided important cases involving civil rights. My circuit court judge, who was the first Black judge on the U.S. Court of Appeals for the 4th Circuit, gave me powerful advice one day. He said, “The U.S. Constitution is meant to protect those who are unpopular. Popular people and popular groups often do not need to rely on the U.S. Constitution, but it is individuals who society disdains who show the true power of the Constitution.”
When looking at the ways in which the federal judiciary has historically shaped issues related to racial segregation, immigration, LGBTQIA+ rights, one can see the clear benefit to having judges who can decide cases in favor of unpopular demographics without the fear of facing a retention election.
In many states across the country, legislators are passing laws that attempt to suppress the vote of Black communities; ban diversity equity and inclusion programs; and suppress inclusive and accurate teaching that reflects all of the communities in our multiracial democracy.
It is often the elected officials, in state legislative bodies, who are responding to their perceived constituencies when passing laws such as those that negatively impact “unpopular communities.” A state judiciary that has the ability to make tough decisions that uphold the rights of those same “unpopular communities” requires an independence that may be incompatible with being elected, depending on the constituencies of that state.
Antonio Ingram is senior counsel of the Legal Defense Fund, an organization focused on the fight for racial justice.
The Democracy Solutions Project is a collaboration among the Chicago Sun-Times, WBEZ and the University of Chicago’s Center for Effective Government, with funding support from the Pulitzer Center. Our goal is to help listeners and readers engage with the democratic functions in their lives and cast an informed ballot in the November 2024 election.
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Want to know more about judicial elections and elected vs. appointed judges? Check out the Democracy Reform Primers, a series by the Center for Effective Government in which expert scholars analyze and explain potential reform policies. Read the primer on elected vs. appointed judges.