A separate study looked at court cases since 2013 that involved constitutional issues in which one party was identifiably progressive or conservative, or the progressive-conservative split showed up in friend of the court briefs. Progressive parties got favorable rulings about three-fourths of the time and unfavorable rulings about a fourth of the time, while conservative parties got favorable rulings about 15 percent of the time and unfavorable rulings about 85 percent of the time.
Conservative critics of the court might say “there is no balance at all,” Altic said, while progressives or even moderates might say “things are going exactly how we want it to.”
But the study does not make a “causal relationship” between the contributions and the rulings, Altic said. Nor does it consider the rulings for their legal validity, quality or balance.
While the data are interesting, there are some things about Washington and its Supreme Court system that it can’t take into account.
First is that, while Washington elects three people to the nine-member court every two years, the seats are rarely open. Justices tend to retire in the middle of a six-year term, and a replacement is named by the governor.
Second, while the seats are officially nonpartisan, for the last 39 years, governors have been Democrats who, not surprisingly, tend to pick a replacement who at least agrees with them on some issues. Once on the bench, a sitting jurist tends to have an advantage. Only two sitting justices in the last 32 years have lost when running for reelection.
Third, while there have been 17 elections for spots on the nine-member court since 2014, only eight have been contested, sometimes by challengers with little money or questionable credentials, such as driving a Zamboni machine to smooth the ice during hockey games. In only three of those elections, all in 2016, did sitting justices face challenges from well-financed opponents with backing from conservative sources.
The races in 2016 tended to show a definite split between Eastern and Western Washington voters. In the other five contested races, the regional split was either less pronounced or absent. Fourth, many of the cases before the court involve issues neither progressive nor conservative. But when the court is ruling on the constitutionality of an issue, it’s dealing with a constitution that was originally written in 1889, by some people who were Progressives and Populists, although those terms meant something a bit different back then.
Altic views the results of the studies as a beginning, not an end. He’d like to do similar studies in more states and compare Washington results with a conservative state that also elects justices in a nonpartisan system.
“In a vacuum, it’s pretty hard to make hard and fast conclusions,” Altic said. “A neutral conclusion would be that it’s interesting data … and interesting questions could be answered by expanding the study.”