The Supreme Court and beyond, how partisan are America’s judges?

Little Rock, Ark.–One September Saturday, Judge Wendell Griffen swaps his robes and courtroom for a crisp suit and a stage at a conference about mass incarceration. He’s the penultimate speaker, and he’s about to talk about the death penalty.

“But first a disclaimer,” he says, and brings up a slide. The crowd, full of like-minded activists, laughs.

“No opinion, statement, or conclusion in this presentation,” the slide reads, “represents the position of the Arkansas judiciary or any other person serving in the judiciary – whether in Arkansas or elsewhere.”

Judge Griffen, who serves in Arkansas’ 6th Judicial District, doesn’t occupy the most glamorous or powerful position in the US judiciary. Still, his decision to join an anti-death penalty rally last year understandably raised eyebrows, not least at the state supreme court, which permanently banned him from hearing death penalty cases last year.

Griffen is an outlier, to be sure. Few judges are willing to air their views publicly on divisive social and political issues. And, observers say, the vast majority of cases decided by judges – including Griffen, and even the United States Supreme Court – do not involve divisive issues. But “the law is not set in stone as people think it is,” says Laurie Levenson, a professor at Loyola Law School in Los Angeles. “Judges are human beings, and I think judges know the law needs changes and it’s part of their role to make those changes.”

This reality also means that judging comes with the trappings of politics. While much of the job is simply applying laws to settle disputes, it on occasion involves discretionary power that can affect policy. Where judges are supposed to differ…

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