In Republican Party of Minnesota v. White, (1) the Supreme Court struck down, on First Amendment grounds, a canon of Minnesota's Code of Judicial Conduct prohibiting candidates for judicial office from announcing their views on disputed issues. In doing so, it called into question the constitutionality of many of the rules that govern campaigns for judicial office in the thirty-nine states that elect at least some of their judges. These rules, modeled after Canon 5 of the American Bar Association's ("ABA") Model Code of Judicial Conduct, (2) and adopted in some form in virtually every state, have long served as one of the primary means by which states seek to ensure the distinct characters and constitutional roles of their judicial branches.
Since White, state regulatory systems designed to promote the independence and impartiality of their judiciaries have been thrown into disarray. By articulating a robust conception of First Amendment protections in the context of judicial elections, the White decision has left the canons--many of which touch on matters within the scope of the First Amendment--susceptible to attack. For example, canons prohibiting judges and judicial candidates from making "pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office" (3) and "mak[ing] statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court" (4) restrict what individuals can say while seeking or holding judicial office and thus implicate constitutional guarantees of free speech. Canons prohibiting judicial candidates from personally soliciting campaign contributions, (5) as well as other state contribution limits and regulations, implicate the speech and association protections recognized in the Court's campaign finance decisions. (6) And canons limiting judges' partisan political activities (7) interfere with the right to associate and to engage in political speech. Because White now stands as the seminal case on the First Amendment rights of judicial candidates, challenges to any of these canons must contend with it.
If White is read as saying that judicial elections must be conducted under the same First Amendment conditions as other elections, then most of these canons will fall. Similar restrictions are simply not constitutionally permissible in elections for political office. But White explicitly disavowed any implication that by having judicial elections a state must accept the full panoply of constitutional doctrine applicable to other elections. After analyzing the challenged canon under its precedents for non-judicial election speech, the Court somewhat cryptically announced, "we neither assert nor imply that the First Amendment requires campaigns for judicial office to sound the same as those for legislative office." (8)
The problem is that the Court did not provide sufficient guidance for determining when judicial elections must and when they need not sound like those for non-judicial office. The reason for this failing is that the Court did not fully address the interests the state sought to promote through its canons. As one state court judge pointed out, it is curious that, in evaluating the constitutionality of state efforts to enforce "ethical conduct appropriate to the judiciary's assigned role in a democracy," (9) the Court did not even attempt to define that role, let alone consider how the state defined that role. This oversight is troubling given that the judicial role and the states' interests in defining and protecting that role are matters that generally carry significant constitutional weight. Whether the White result is correct, its reasoning, which fails to lay out a framework balancing the constitutional values served by the canons with those of free speech in the special context of judicial elections, is unsatisfying. …