May 25 , 2017

Illinois has had an elective judiciary since 1848, when the second Illinois Constitution took effect. Why did the framers of that constitution decide on popular elections for judges and justices? Even though popular election for judges was a growing trend nationally, there were two men in Illinois whose actions cemented the decision for an elective third branch: William Foster and Stephen Douglas.

As a reaction to a strong territorial governor, the first Illinois Constitution in 1818 gave broad powers to the Illinois legislature, including the responsibility of appointing Illinois Supreme Court justices.

William Foster was one of the first four justices the legislature named to the Supreme Court in October 1818. The Court was scheduled to meet for its first term in Kaskaskia in July 1819. Foster resigned in June 1819, but not before picking up his paycheck and leaving Illinois permanently. Nineteenth-century historians wrote that Foster was paid for no work, was a scoundrel, and even prostituted his daughters. More modern research has shown that Foster actually did some work as a circuit judge, which was required of Supreme Court justices. Nonetheless, the memory of Foster loomed large when the second Constitutional Convention met in 1847.

Stephen Douglas was involved as an attorney in two politically charged cases (People ex rel. McClernand v. Field and Spragins v. Houghton) in 1839. The Supreme Court consisted of four members: three Whigs and one Democrat. The McClernand case concerned the governor’s ability to replace a sitting secretary of state, arousing both parties. The Whig majority Court ruled in favor of the Whig secretary of state, angering the Democrats. The Spragins case concerned voting rights for recent Irish immigrants but had not yet been argued before the Supreme Court. Stephen Douglas feared the Whig majority would rule against his client and party. Even though he was not a member of the legislature, Douglas pushed the Democratic majority in 1840 to pass a bill to reorganize the Supreme Court increasing its membership from four to nine. Since the Democrats controlled the legislature, the Democrats then appointed the five new Supreme Court justices—all of whom were Democrats, giving them a 6-3 majority on the Court. Stephen Douglas was the last appointed of the five new Democratic justices.

Fearing more William Fosters and Stephen Douglases, the 1847 constitutional convention agreed to an elective judiciary to give the populace the right to choose the judges that served them. With a popularly elected judiciary, the Supreme Court became less politicized in the 1850s and beyond and more concerned with the important cases of the day to help create and maintain a growing body of law in Illinois that dealt with major issues of agriculture, transportation, corporations, and the exponential population increase in the city of Chicago.