The Good News in Republican Party of Minnesota V. White

Article excerpt

The White decision does not affect code restrictions that apply outside the context of judicial campaigns.

In Republican Party of Minnesota v. WhUe, 536 U.S. 765 (2002), the United States Supreme Court held by a vote of 5 to 4 that a state cannot, consistent with the First Amendment, prohibit judicial candidates from announcing their views on disputed legal and political issues. Strictly speaking, only those nine states that in 2002 had the "announce clause" in their codes of judicial conduct were directly affected by the decision. However, all states with judicial campaigns have been searching for portents of how the Court might rule in challenges to other campaign and political restrictions by reading the majority opinion written by justice Scalia, the two concurring opinions written by Justice Kennedy and Justice O'Connor, and the two dissents written by Justice Stevens and Justice Ginsburg.

The states' reactions have ranged from capitulation out of a fear of being sued, giving up any attempt to require judicial candidates to campaign differently than candidates for other offices ( see code changes in North Carolina (www.aoc.state.nc.us/ www/public/htrnl/rulesjud.htm)), to continuing enforcement of narrower restrictions, believing that the principles of judicial impartiality and independence should apply to even an elected judiciary (see discipline decisions in New York and Florida (In the Matter of Watson, 794 N.E.2d 1 (New York 2003); Inquiry Concerning Kinsey, 842 So. 2d 77 (Florida 2003), cert. denied, 124 S. Ct. 180 (2003)). What repercussions White will have in the long term on judicial campaign and political activities is not yet settled as the state courts continue their reevaluation and the federal courts consider new challenges.

What is certain is that While raises no doubts about the constitutionality of any code provision that does not involve campaign or political conduct, such as those limiting a judge's comments on pending cases or extra-judicial activities. The decision did not announce any new-found, unassailable First Amendment rights for judges that would apply in other contexts, but focused exclusively on the needs of voters for information about the candidates in judicial election campaigns.

The problem with the announce clause, Justice Scalia wrote in the majority opinion, was that it "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," creating "an obvious tension between the article of Minnesota's popularly approved Constitution which provides that judges shall be elected, and the Minnesota Supreme Court's announce clause which places most subjects of interest to the voters off limits." The Court concluded: "We have never allowed the government to prohibit candidates from communicating relevant information to voters during an election."

Similarly, in her concurring opinion, Justice O'Connor wrote that in choosing "to select its judges through contested popular elections instead of through an appointment system or a combined appointment and retention election system . . . the State has voluntarily taken on the risks to judicial bias . . . ."

As a result, the State's claim that it needs to significantly restrict judges' speech in order to protect judicial impartiality is particularly troubling. If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.

In his concurring opinion, Justice Kennedy also emphasized that "the political speech of candidates is at the heart of the First Amendment, and direct restrictions on the content of candidate speech are simply beyond the power of government to impose," noting "deciding the relevance of candidate speech is the right of the voters, not the State. …