How Much Speech for Judges?

By Goldberg, Deborah | Justice System Journal, January 1, 2007 | Go to article overview

How Much Speech for Judges?


Goldberg, Deborah, Justice System Journal


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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

How Much Speech for Judges?
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.