Republican Party of Minnesota v. White, 536 U.S. 765; 122 S. Ct. 2528; 153 L. Ed. 2d 694 (2002)

Facts—The Minnesota Supreme Court issued a rule that prohibited judicial candidates from announcing their view on disputed legal or political issues. Gregory Wersal, running for associate justice of the Minnesota Supreme Court, distributed literature criticizing several of its opinions and had a complaint filed against him with the Office of Lawyers Professional Responsibility. Wersal withdrew from the election but later ran again and sought an advisory opinion as to whether it would enforce its “announce clause”; the Board responded equivocally. Wersal subsequently sought a declaration that the clause violated the First Amendment and sought an injunction against its enforcement. The U.S. District Court and the U.S. Eighth Circuit Court both upheld the provision.

Question—Does the judicially promulgated rule in Minnesota prohibiting judicial candidates from announcing their views on disputed legal or political issues violate the First and Fourteenth Amendments?

Decision—Yes.

Reasons—J. Scalia (5–4). Scalia distinguished the “announce” clause from the “pledges or promises” clause that banned specific promises as a condition of election. The announce clause has been broadly construed to cover comments on past decisions; moreover, its exemption for “general discussion” of cases is limited: “the announce clause prohibits a judicial candidate from stating his views on any specific nonfanciful legal question within the province of the court for which he is running, except in the context of discussing past decisions—and in the latter context as well, if he expresses the view that he is not bound by stare decisis.” Such limitations are suspect both because they are content based and because they deal with speech that is at the very core of the First Amendment. The state justified these limitations as attempts to preserve judicial impartiality and its appearance, but they are not narrowly tailored to these ends. The announce clause was not needed to assure impartiality whether interpreted to assure equal application of the law to litigants, to avoid preconceptions in favor of particular legal views, or to insure open-mindedness. Specifically, the clause did nothing about opinions that judges have expressed either prior to announcing their candidacy or once they are on the bench. The separate clause dealing with “pledges or promises” addresses such issues much more specifically. Judicial elections are similar to others and require the same kinds of free speech. Moreover, “[t]he practice of prohibiting speech by judicial candidates on disputed issues . . . is neither long not universal.” Judicial elections did not become widespread until the Jacksonian period and did not initially limit the speech of candidates, and by the end of World War II, judicial canons similar to those in Minnesota applied to such elections in only eleven states. The clause points to “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.”

J. O’Connor, concurring, expressed her concerns about state judicial elections, with the campaigning and fund-raising they require.

J. Kennedy, concurring, argued that the clause at issue should be invalidated on First Amendment grounds, with or without a state showing of a compelling interest.

J. Stevens, dissenting, argued that the Court failed to distinguish the real differences between regular elections and those for judgeships. Judges are different because rather than serving constituents they have “a duty to uphold the law and to follow the dictates of the Constitution.” States should not have to make “an all or nothing choice of abandoning judicial elections or having elections in which anything goes.”

J. Ginsburg, dissenting, also emphasized that “judges represent the Law.” She further argued that “The ability of the judiciary to discharge its unique role rests to a large degree on the manner in which judges are selected.” Whereas legislative and executive officers “serve in representative capacities,” judges “do not sit as representatives of particular persons, communities, or parties; they serve no faction or constituency.” Therefore the rationale that justifies uninhibited speech in one case does not justify it in another. Such speech tends to undermine impartiality and the perception of impartiality. Minnesota should not require that judges “be treated as politicians simply because they are chosen by popular vote.”