Judicial elections and the First Amendment.

Where once it was the liberals on the Supreme Court who could be counted on to be consistent champions of the First Amendment, it is now the conservative justices who are often the most protective of free speech. For example, Justices Anthony Kennedy, Antonin Scalia, and Clarence Thomas would expand First Amendment protection for campaign spending and declare restrictions on campaign contributions unconstitutional. (1) They are also more willing to provide greater protection for commercial speech. (2)

The most dramatic example of this, though, was the Supreme Court's June 27 decision in Republican Party of Minnesota v. White. (3) In a 54 decision, the Court invalidated a state law that prohibited candidates for judicial office from announcing their views on disputed legal or political issues. The majority opinion, written by Scalia and joined by Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Kennedy, and Thomas, struck down the law as violating the First Amendment. Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer dissented.

In many areas, the Rehnquist Court is ideologically predictable. Its federalism decisions, for example, are usually 54, with the conservative justices consistently voting to limit federal power and expand sovereign immunity. (4) Likewise, the Court often splits along ideological lines in allowing more government aid to religious institutions, as it did in the recent 5-4 decision upholding the constitutionality of laws that allow parents to use vouchers in parochial schools. (5) But in the area of freedom of speech, ideology no longer predicts who will vote to strike down restrictions on expression and who will uphold them.

The Court's decision in White will dramatically change the nature of speech in judicial elections. The ruling also will lead to immediate challenges to laws in other states, such as those that bar "pledges" or "promises" in judicial campaigns and forbid candidates to make statements that appear to commit them to specific conduct once they are in office.

Forty-one states require at least some of their judges to face electoral review. The nature of judicial elections varies enormously across the country: Some are partisan and others are not; some are retention elections in which voters decide whether a judge should remain in office.

Minnesota has had elected judges since it became a state in 1858; since 1912, these have been nonpartisan. (6) Adopting a provision from the 1972 American Bar Association Model Code of Judicial Conduct, its law states that a candidate for judicial office may not "announce his or her views on disputed legal or political issues." (7) Incumbent judges who violate the rule are subject to discipline, including censure, civil penalties, and removal without pay. (8) Lawyers who run for judicial office and violate the rule may be disbarred, suspended, or placed on probation. (9)

Gregory Wersal ran for associate justice of the Minnesota Supreme Court in 1996. A complaint was filed against him for distributing literature criticizing the court's decisions on issues such as crime, abortion, and welfare. Wersal withdrew from the race, but when he ran again in 1998 he sought clarification from the Minnesota Lawyers' Professional Responsibility Board about what speech was permissible. When it did not give guidance, in part because of its doubts about the rule's constitutionality, Wersal filed suit in federal court. The district court and the Eighth Circuit upheld the law, but the Supreme Court, in a 5-4 decision, reversed.

In his majority opinion, Scalia stressed that the Minnesota law constituted an impermissible content-based restriction on political speech. The Court explained that the law "both prohibits speech on the basis of its content and burdens a category of speech that is at the core of `our First Amendment freedoms'--speech about the qualifications of candidates for public office." (10) Thus, the law could be upheld only if it were found to meet strict scrutiny; that is, the law would be struck down unless the Court concluded that it was narrowly tailored to achieve a compelling purpose.

The Court rejected the state's claim that the restriction on speech was necessary to preserve judicial impartiality and the appearance of impartiality. Scalia explained that judges inevitably have views about important legal issues and that this does not make them impermissibly biased: "A judge's lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law." (11) Indeed, no one has a doubt about how Scalia will vote the next time the Supreme Court considers whether to overrule Roe v. Wade, but no one has suggested that this means he must recuse himself from the case.

The Court rejected the argument that judicial candidates who express views will lack open-mindedness on the bench, or will be perceived as lacking this essential attribute of good judging. Scalia explained,

   The short of the matter is this: In Minnesota,
   a candidate for judicial office may not say, `I
   think it is constitutional for the legislature to
   prohibit same-sex marriages.' He may say the
   very same thing, however, up until the very day
   before he declares himself a candidate, and
   may say it repeatedly (until litigation is pending)
   after he is elected. (12)

For the majority of the Court, the Minnesota law was an impermissible restriction on candidates' ability to inform voters of their views on important issues. Scalia stressed that such speech is at the very core of the First Amendment: "We have never allowed the government to prohibit candidates from communicating relevant information to voters during an election." (13)

O'Connor's concurring opinion stressed that the trouble lies with the inherently problematic circumstances of electing judges. (14) Voters rarely know enough about judicial candidates to make knowledgeable choices. There is an inherent tension between elections and judicial independence; inevitably, judges might be influenced in deciding cases by the likely impact of their rulings on the next election. But O'Connor wrote that in making the choice to select judges in this way, "the state has voluntarily taken on the risks to judicial bias.... If the state has a problem with judicial impartiality, it is largely one that the state has brought upon itself by continuing the practice of popularly electing judges." (15)

Stevens and Ginsburg wrote dissenting opinions; each was joined by the other dissenting justices. Both dissents emphasized the threat to judicial integrity and the appearance of impartiality. Ginsburg stressed that judicial office is inherently different from a legislative or executive position, and that different rules for campaigning should be applied. In a footnote, she noted that at Scalia's confirmation hearings, he refused to answer questions about his views on issues that might come before the Court, including whether specific precedents should be overruled. (16)

White is likely to have a significant effect in the 40 other states that have some form of judicial elections. It will lead to immediate challenges to other types of restrictions on speech by judicial candidates. For example, the Supreme Court expressly said that it was not considering the constitutionality of state laws that prohibit candidates from making "pledges" or "promises" of conduct in office. (17) Nor did the Court discuss the constitutionality of provisions found in most states that prohibit candidates from making "statements that commit or appear to commit the candidate with respect to cases, controversies, or issues that are likely to come before the court." (18)

Perhaps a distinction can be drawn between prohibiting candidates from expressing views about disputed legal or political issues and making statements that appear to commit them with respect to those issues. But in practice, this may be a difficult line to draw. Is there a difference between a candidate's saying, "I believe that Roe was wrongly decided and should be overruled" and saying, "I believe that Roe was wrongly decided and, if presented with the opportunity, I would vote to overrule the decision"? There is a distinction, but it is one that makes no difference except in the most formalistic sense. Both statements leave no doubt as to where the candidate stands or how the candidate is likely to vote.

Certainly, it is distressing to think of judicial candidates appealing to voters with commercials stating their opposition to abortion rights or their desire to impose the death penalty. But the simple reality is that judicial elections make judges and judicial candidates into politicians. The First Amendment protects their right as politicans to express their views. Voters should be able to hear them in deciding how to cast their ballots.

The most fascinating aspect of White is the ideological split among the justices. Over the next year or two, as the Court considers issues such as the constitutionality of hate crime statutes and campaign finance restrictions, the shift in ideology reflected in this decision is likely to be of great significance.

Notes

(1.) See, e.g., Fed. Election Comm'n v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431 (2001) (Thomas, J., dissenting).

(2.) See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) (O'Connor's majority opinion invalidating Massachusetts regulation of tobacco advertisements was joined by Rehnquist, Scalia, Kennedy, and Thomas.).

(3.) 122 S. Ct. 2528 (2002).

(4.) See, e.g., Fed. Maritime Comm'n v. S.C. State Ports Auth., 122 S. Ct. 1864 (2002)(state governments cannot be sued in adjudicatory administrative proceedings); Bd. of Trustees of Univ. of Ala, v. Garrett, 531 U.S. 356 (2001) (state governments cannot be sued for violating Title I of the Americans with Disabilities Act).

(5.) Zelman v. Simmons-Harris, 122 S. Ct. 2460 (2002).

(6.) White, 122 S. Ct. 2528, 2531.

(7.) MINN. CODE OF JUDICIAL CONDUCT Canon 5(A)(3)(d)(i) (1993).

(8.) MINN. R. OF BD. OF JUDICIAL STANDARDS 4(a)(6), 11(d)(1993).

(9.) MINN. R. ON LAWYERS' PROF'L RESPONSIBILITY 8-15(a) (1993).

(10.) White, 122 S. Ct. 2528, 2534 (quoting Republican Party of Minn. v. White, 247 F.3d 854, 861 (8th Cir. 2001)).

(11.) Id. at 2536.

(12.) Id. at 2537.

(13.) Id. at 2538.

(14.) Id. at 2542 (O'Connor, J., concurring).

(15.) Id. at 2544.

(16.) Id. at 2558 n.4 (Ginsburg, J., dissenting).

(17.) MODEL CODE OF JUDICIAL CONDUCT Canon 5A cmt. (3)(d)(i) (A candidate for judicial office "shall not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.").

(18.) Id. cmt. 3(d)(ii).

Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California in Los Angeles. Currently, he is a visiting professor at Duke Law School in Durham, North Carolina.