How Much Speech for Judges?

Article excerpt

In examining the question "How much speech for judges?" this essay will provide both some analysis of contemporary jurisprudence and a normative response. Current case law does not fully answer the question and, thus, leaves open the debate about how much judicial speech is required as a matter of law and desirable as a matter of policy.

To be sure, we have some guidance from the U.S. Supreme Court. In Republican Party of Minnesota v. White (2002), the Court ruled that candidates for judicial office must be allowed to announce their views on disputed legal and policy issues. Moreover, in striking down Minnesota's "announce clause," the canon of judicial ethics that prohibited such announcements, White noted:

[T]he greater power to dispense with elections altogether does not include the lesser power to conduct elections under conditions of state-imposed voter ignorance. If the State chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that process . . . the First Amendment rights that attach to their roles (at 788).

White, if its rhetoric is to be taken seriously, is nevertheless a narrow decision. The Court declined to draw inferences from its ruling for the constitutionality of other canons of judicial ethics. Justice Scalia, writing for the majority, also noted that "we neither assert nor imply that the First Amendment requires campaigns for judicial office to sound the same as those for legislative office" (at 783).

The tensions within White have produced considerable uncertainty among judicial candidates, bodies charged with regulating judicial conduct, and lower courts asked to interpret the reach of the decision. A raft of cases challenging judicial canons other than the announce clause illuminate a struggle to balance the competing constitutional concerns implicated by elections for the bench-the First Amendment rights of participants in the democratic process and the rights of litigants to due process and equal protection under the law. It is not clear, however, whether courts deciding those cases fully appreciate how their decisions are affecting the character of judicial campaigns or, in turn, the ability of elected judges to fulfill their institutional role.

The institutional role of judges within our constitutional democracy is best understood through the lens of the separation of powers. Stated in simplified form, legislatures are supposed to make the law, within limits set by federal and state constitutions; executive officers are supposed to enforce the law, within limits set by federal and state constitutions; and courts are supposed to offer neutral arbitration of disputes about how to apply or to interpret the law, including the limits set by federal and state constitutions. Yet in practice, all three branches influence the direction of public policy: the executive branch does so directly through executive orders and the regulatory apparatus of administrative agencies, and the judicial branch does so indirectly through the development of common law, statutory interpretation, and adjudication of constitutional questions. Each branch has powers that enable it to check overreaching by the others. As the ultimate arbiter of constitutional questions, the judiciary is charged with protecting minority rights against executive and legislative excesses, even though decisions that limit majoritarian power inevitably will be unpopular.

It is this institutional role of the judiciary that generates controversy not only about issues that divide the country but also about the process of electing judges. Elections, as the White Court recognized, are designed to give a degree of democratic legitimacy to governmental decisions. Voters hold officials accountable for their actions through the threat of defeat at the polls. Yet if we are to preserve the separation of powers and the ability of courts to protect the rights of unpopular minorities, we must find structural mechanisms that prevent judges from becoming nothing more than clones of legislators sporting law degrees. …