OCTOBER TERM, 2001
Syllabus
REPUBLICAN PARTY OF MINNESOTA ET AL.
v.
WHITE, CHAIRPERSON, MINNESOTA BOARD OF JUDICIAL STANDARDS, ET
AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT
No.01-521. Argued March 26, 2002-Decided June 27, 2002
The Minnesota Supreme Court has adopted a canon of judicial
conduct that prohibits a "candidate for a judicial office" from
"announc[ing] his or her views on disputed legal or political
issues" (hereinafter announce clause). While running for associate
justice of that court, petitioner Gregory Wersal (and others) filed
this suit seeking a declaration that the announce clause violates
the First Amendment and an injunction against its enforcement. The
District Court granted respondent officials summary judgment, and
the Eighth Circuit affirmed.
Held: The announce clause violates the First Amendment.
Pp. 770-788.
(a) The record demonstrates that the announce clause prohibits a
judicial candidate from stating his views on any specific
nonfancifullegal 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. Pp. 770-774.
(b) The announce clause both prohibits speech based on its
content and burdens a category of speech that is at the core of
First Amendment freedoms-speech about the qualifications of
candidates for public office. The Eighth Circuit concluded, and the
parties do not dispute, that the proper test to be applied to
determine the constitutionality of such a restriction is strict
scrutiny, under which respondents have the burden to prove that the
clause is (1) narrowly tailored, to serve (2) a compelling state
interest.
E. g., Eu v.
San Francisco County
Democratic Central Comm., 489 U. S. 214, 222. That
court found that respondents had established two interests as
sufficiently compelling to justify the announce clause: preserving
the state judiciary's impartiality and preserving the appearance of
that impartiality. Pp. 774-775.
(c) Under any definition of "impartiality," the announce clause
fails strict scrutiny. First, it is plain that the clause is not
narrowly tailored to serve impartiality (or its appearance) in the
traditional sense of the word, i.
e., as a lack of bias for
or against either party to the proceeding. Indeed, the clause is
barely tailored to serve that interest at all, inasmuch as it does
not restrict speech for or against particular parties,
766
but rather speech for or against particular issues. Second,
although "impartiality" in the sense of a lack of preconception in
favor of or against a particular legal view may well be an interest
served by the announce clause, pursuing this objective is not a
compelling state interest, since it is virtually impossible, and
hardly desirable, to find a judge who does not have preconceptions
about the law, see
Laird v.
Tatum, 409 U. S. 824, 835.
Third, the Court need not decide whether achieving "impartiality"
(or its appearance) in the sense of openmindedness is a compelling
state interest because, as a means of pursuing this interest, the
announce clause is so woefully underinclusive that the Court does
not believe it was adopted for that purpose. See,
e. g., City of
Ladue v.
Gilleo, 512 U. S. 43, 52-53.
Respondents have not carried the burden imposed by strict scrutiny
of establishing that statements made during an election campaign
are uniquely destructive of openmindedness. See,
e. g., Landmark
Communications, Inc. v.
Virginia, 435 U. S. 829, 841. Pp.
775-784.
(d) A universal and long-established tradition of prohibiting
certain conduct creates a strong presumption that the prohibition
is constitutional, see
McIntyre v.
Ohio Elections
Comm'n, 514 U. S.
334, 375-377. However, the practice of prohibiting speech by
judicial candidates is neither ancient nor universal. The Court
knows of no such prohibitions throughout the 19th and the first
quarter of the 20th century, and they are still not universally
adopted. This does not compare well with the traditions deemed
worthy of attention in,
e. g., Burson v.
Freeman,
504
(e) There is an obvious tension between Minnesota's
Constitution, which requires judicial elections, and the announce
clause, which places most subjects of interest to the voters off
limits. The First Amendment does not permit Minnesota to leave the
principle of elections in place while preventing candidates from
discussing what the elections are about. See,
e. g., Renne
v.
Geary, 501
U. S. 312, 349. Pp. 787-788.
247 F.3d
854, reversed and remanded.
SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, KENNEDY, and THOMAS, JJ., joined.
O'CONNOR, J.,
post, p. 788, and KENNEDY, J.,
post, p.
792, filed concurring opinions. STEVENS, J., filed a dissenting
opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined,
post, p. 797. GINSBURG, J., filed a dissenting opinion, in
which STEVENS, SOUTER, and BREYER, JJ., joined,
post, p.
803.
James Bopp, Jr., argued the cause for petitioners
Republican Party of Minnesota et al. With him on the briefs
were
767
Thomas
J. Marzen, Richard E. Coleson, and Ronald D.
Rotunda. William F. Mohrman and Erick G. Kaardal filed briefs for
petitioners Wersal et al.
Alan 1.
Gilbert, Chief Deputy and Solicitor
General of Minnesota, argued the cause for respondents. With him on
the brief were
Mike Hatch, Attorney General,
Kristine L.
Eiden, Deputy Attorney General, and
Julie Ralston Aoki, Mark
B. Lev inger, and
Thomas C.
Vasaly, Assistant
Attorneys General. *
*Briefs of
amici curiae urging reversal were filed for
the American Center for Law and Justice by
Jay Alan Sekulow,
James H. Henderson, Sr., Colby M. May, and
Walter M.
Weber; for the American Civil Liberties Union et al. by
David B. Isbell, David H. Remes, and
Steven R.
Shapiro; for the Chamber of Commerce of the United States by
Jan Witold Baran and
Stephen A. Bokat; for Minnesota
State Representative Philip Krinkie et al. by
Raymond C.
Ortman, Jr.; for Public Citizen by
Allison M. Zieve,
David C.
Vladeck, and
Scott L. Nelson; and for
State Supreme Court Justices by
Erik S.
Jaffe.
Briefs of
amici curiae urging affirmance were filed for
the State of California et al. by
Bill Lockyer, Attorney
General of California, and
Manuel M. Medeiros, State
Solicitor, and by the Attorneys General for their respective States
as follows:
Janet Napolitano of Arizona,
Jeremiah W (Jay)
Nixon of Missouri,
Mike McGrath of Montana,
W A. Drew
Edmondson of Oklahoma,
Hardy Myers of Oregon,
John
Cornyn of Texas, and
Christine Q Gregoire of Washington;
for the Ad hoc Committee of Former Justices and Friends Dedicated
to an Independent Judiciary by S.
Shawn Stephens and
Andy
Taylor; for the American Bar Association by
Robert E.
Hirshon, Reagan Wm. Simpson, and
Warren S.
Huang;
for the Minnesota State Bar Association by
Wayne D. Struble;
for the Brennan Center for Justice at NYU School of Law et al. by
Scott Bales and
Deborah Goldberg; for the Conference
of Chief Justices by
Roy A. Schotland, George T. Patton, Jr.,
Sarah Steele Riordan, and
Robert F.
Bauer; for
the Missouri Bar by
Joseph C.
Blanton, Jr.; and for
Pennsylvanians for Modern Courts by
Edmund B. Spaeth, Jr.,
and
Brett G.
Sweitzer.
Briefs of
amici curiae were filed for the Idaho
Conservation League et al. by
John D. Echeverria; and for
the National Association of Criminal Defense Lawyers by
David W
Ogden, Jonathan J. Frankel, Neil M. Richards, and
Lisa Kemler.
768
JUSTICE SCALIA delivered the opinion of the Court.
The question presented in this case is whether the First
Amendment permits the Minnesota Supreme Court to prohibit
candidates for judicial election in that State from announcing
their views on disputed legal and political issues.
I
Since Minnesota's admission to the Union in 1858, the State's
Constitution has provided for the selection of all state judges by
popular election. Minn. Const., Art. VI, § 7. Since 1912, those
elections have been nonpartisan. Act of June 19, ch. 2,1912 Minn.
Laws Special Sess., pp. 4-6. Since 1974, they have been subject to
a legal restriction which states that a "candidate for a judicial
office, including an incumbent judge," shall not "announce his or
her views on disputed legal or political issues." Minn. Code of
Judicial Conduct, Canon 5(A)(3)(d)(i) (2000). This prohibition,
promulgated by the Minnesota Supreme Court and based on Canon 7(B)
of the 1972 American Bar Association (ABA) Model Code of Judicial
Conduct, is known as the "announce clause." Incumbent judges who
violate it are subject to discipline, including removal, censure,
civil penalties, and suspension without pay. Minn. Rules of Board
on Judicial Standards 4(a)(6), l1(d) (2002). Lawyers who run for
judicial office also must comply with the announce clause. Minn.
Rule of Professional Conduct 8.2(b) (2002) ("A lawyer who is a
candidate for judicial office shall comply with the applicable
provisions of the Code of Judicial Conduct"). Those who violate it
are subject to,
inter alia, disbarment, suspension, and
probation. Rule 8.4(a); Minn. Rules on Lawyers Professional
Responsibility 8-14, 15(a) (2002).
In 1996, one of the petitioners, Gregory Wersal, ran for
associate justice of the Minnesota Supreme Court. In the course of
the campaign, he distributed literature criticizing several
Minnesota Supreme Court decisions on issues such as crime, welfare,
and abortion. A complaint against Wersal
769
challenging, among other things, the propriety of this
literature was filed with the Office of Lawyers Professional
Responsibility, the agency which, under the direction of the
Minnesota Lawyers Professional Responsibility Board,1 investigates
and prosecutes ethical violations of lawyer candidates for judicial
office. The Lawyers Board dismissed the complaint; with regard to
the charges that his campaign materials violated the announce
clause, it expressed doubt whether the clause could
constitutionally be enforced. Nonetheless, fearing that further
ethical complaints would jeopardize his ability to practice law,
Wersal withdrew from the election. In 1998, Wersal ran again for
the same office. Early in that race, he sought an advisory opinion
from the Lawyers Board with regard to whether it planned to enforce
the announce clause. The Lawyers Board responded equivocally,
stating that, although it had significant doubts about the
constitutionality of the provision, it was unable to answer his
question because he had not submitted a list of the announcements
he wished to make.2
Shortly thereafter, Wersal filed this lawsuit in Federal
District Court against respondents,3 seeking,
inter alia,
a
1 The Eighth Circuit did not parse out the separate functions of
these two entities in the case at hand, referring to the two of
them collectively as the "Lawyers Board." We take the same
approach.
2 Nor did Wersal have any success receiving answers from the
Lawyers Board when he included "concrete examples,"
post, at
799, n. 2 (STEVENS, J., dissenting), in his request for an advisory
opinion on other subjects a month later:
"As you are well aware, there is pending litigation over the
constitutionality of certain portions of Canon 5. You are a
plaintiff in this action and you have sued, among others, me as
Director of the Office of Lawyers Professional Responsibility and
Charles Lundberg as the Chair of the Board of Lawyers Professional
Responsibility. Due to this pending litigation, I will not be
answering your request for an advisory opinion at this time." App.
153.
3 Respondents are officers of the Lawyers Board and of the
Minnesota Board on Judicial Standards (Judicial Board), which
enforces the ethical rules applicable to judges.
770
declaration that the announce clause violates the First
Amendment and an injunction against its enforcement. Wersal alleged
that he was forced to refrain from announcing his views on disputed
issues during the 1998 campaign, to the point where he declined
response to questions put to him by the press and public, out of
concern that he might run afoul of the announce clause. Other
plaintiffs in the suit, including the Minnesota Republican Party,
alleged that, because the clause kept Wersal from announcing his
views, they were unable to learn those views and support or oppose
his candidacy accordingly. The parties filed cross-motions for
summary judgment, and the District Court found in favor of
respondents, holding that the announce clause did not violate the
First Amendment. 63 F. Supp. 2d 967 (Minn. 1999). Over a dissent by
Judge Beam, the United States Court of Appeals for the Eighth
Circuit affirmed.
Republican Party of Minn. v.
Kelly,
247 F.3d
854 (2001). We granted certiorari. 534 U. S. 1054 (2001).
II
Before considering the constitutionality of the announce clause,
we must be clear about its meaning. Its text says that a candidate
for judicial office shall not "announce his or her views on
disputed legal or political issues." Minn. Code of Judicial
Conduct, Canon 5(A)(3)(d)(i) (2002).
We know that "announc[ing] ... views" on an issue covers much
more than
promising to decide an issue a particular way. The
prohibition extends to the candidate's mere statement of his
current position, even if he does not bind himself to maintain that
position after election. All the parties agree this is the case,
because the Minnesota Code contains a so-called "pledges or
promises" clause, which
separately prohibits judicial
candidates from making "pledges or promises of conduct in office
other than the faithful and impartial performance of the duties of
the office,"
ibid.-a prohibition that is not challenged here
and on which we express no view.
771
There are, however, some limitations that the Minnesota Supreme
Court has placed upon the scope of the announce clause that are not
(to put it politely) immediately apparent from its text. The
statements that formed the basis of the complaint against Wersal in
1996 included criticism of past decisions of the Minnesota Supreme
Court. One piece of campaign literature stated that "[t]he
Minnesota Supreme Court has issued decisions which are marked by
their disregard for the Legislature and a lack of common sense."
App. 37. It went on to criticize a decision excluding from evidence
confessions by criminal defendants that were not tape-recorded,
asking "[s]hould we conclude that because the Supreme Court does
not trust police, it allows confessed criminals to go free?"
Ibid. It criticized a decision striking down a state law
restricting welfare benefits, asserting that "[i]t's the
Legislature which should set our spending policies."
Ibid.
And it criticized a decision requiring public financing of
abortions for poor women as "unprecedented" and a "pro-abortion
stance."
Id., at 38. Although one would think that all of
these statements touched on disputed legal or political issues,
they did not (or at least do not now) fall within the scope of the
announce clause. The Judicial Board issued an opinion stating that
judicial candidates may criticize past decisions, and the Lawyers
Board refused to discipline Wersal for the foregoing statements
because, in part, it thought they did not violate the announce
clause. The Eighth Circuit relied on the Judicial Board's opinion
in upholding the announce clause, 247 F. 3d, at 882, and the
Minnesota Supreme Court recently embraced the Eighth Circuit's
interpretation,
In re Code of Judicial Conduct, 639 N. W. 2d
55 (2002).
There are yet further limitations upon the apparent plain
meaning of the announce clause: In light of the constitutional
concerns, the District Court construed the clause to reach only
disputed issues that are likely to come before the candidate if he
is elected judge. 63 F. Supp. 2d, at 986. The
772
Eighth Circuit accepted this limiting interpretation by the
District Court, and in addition construed the clause to allow
general discussions of case law and judicial philosophy. 247 F. 3d,
at 881-882. The Supreme Court of Minnesota adopted these
interpretations as well when it ordered enforcement of the announce
clause in accordance with the Eighth Circuit's opinion.
In re
Code of Judicial Conduct, supra.
It seems to us, however, that-like the text of the announce
clause itself-these limitations upon the text of the announce
clause are not all that they appear to be. First, respondents
acknowledged at oral argument that statements critical of past
judicial decisions are
not permissible if the candidate also
states that he is against
stare decisis. Tr. of Oral Arg.
33-34.4 Thus, candidates must choose between stating their views
critical of past decisions and stating their views in opposition to
stare decisis. Or, to look at it more concretely, they may
state their view that prior decisions were erroneous only if they
do not assert that they, if elected, have any power to eliminate
erroneous decisions. Second, limiting the scope of the clause to
issues likely to come before a court is not much of a limitation at
all. One would hardly expect the "disputed legal or political
issues" raised in the course of a state judicial election to
include such matters as whether the Federal Government should end
the embargo of Cuba. Quite obviously, they will be those legal or
political disputes that are the proper (or by past decisions have
been made the improper) business of the state courts. And within
that relevant category, "[t]here is almost no legal or political
issue that is unlikely to come before a judge of an American court,
state or federal, of general jurisdiction."
4JUSTICE GINSBURG argues that we should ignore this concession
at oral argument because it is inconsistent with the Eighth
Circuit's interpretation of the announce clause.
Post, at
810 (dissenting opinion). As she appears to acknowledge, however,
the Eighth Circuit was merely silent on this particular question.
Ibid. Silence is hardly inconsistent with what respondents
conceded at oral argument.
773
Buckley v.
Illinois Judicial Inquiry Bd.,
997 F.2d
224, 229
(CA7 1993). Third, construing the clause to
allow "general" discussions of case law and judicial philosophy
turns out to be of little help in an election campaign. At oral
argument, respondents gave, as an example of this exception, that a
candidate is free to assert that he is a "'strict constructionist.'
" Tr. of Oral Arg. 29. But that, like most other philosophical
generalities, has little meaningful content for the electorate
unless it is exemplified by application to a particular issue of
construction likely to come before a court-for example, whether a
particular statute runs afoul of any provision of the Constitution.
Respondents conceded that the announce clause would prohibit the
candidate from exemplifying his philosophy in this fashion.
Id., at 43. Without such application to real-life issues,
all candidates can claim to be "strict constructionists" with equal
(and unhelpful) plausibility.
In any event, it is clear that 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.5
5 In 1990, in response to concerns that its 1972 Model
Canon-which was the basis for Minnesota's announce clause-violated
the First Amendment, see L. Milord, The Development of the ABA
Judicial Code 50 (1992), the ABA replaced that canon with a
provision that prohibits a judicial candidate from making
"statements that commit or appear to commit the candidate with
respect to cases, controversies or issues that are likely to come
before the court." ABA Model Code of Judicial Conduct, Canon
5(A)(3)(d)(ii) (2000). At oral argument, respondents argued that
the limiting constructions placed upon Minnesota's announce clause
by the Eighth Circuit, and adopted by the Minnesota Supreme Court,
render the scope of the clause no broader than the ABA's 1990
canon. Tr. of Oral Arg. 38. This argument is somewhat curious
because, based on the same constitutional concerns that had
motivated the ABA, the Minnesota Supreme Court was urged to replace
the announce clause with the new ABA language, but, unlike other
jurisdictions, declined. Final Report of the Advi-
774
Respondents contend that this still leaves plenty of topics for
discussion on the campaign trail. These include a candidate's
"character," "education," "work habits," and "how [he] would handle
administrative duties if elected." Brief for Respondents 35-36.
Indeed, the Judicial Board has printed a list of preapproved
questions which judicial candidates are allowed to answer. These
include how the candidate feels about cameras in the courtroom, how
he would go about reducing the caseload, how the costs of judicial
administration can be reduced, and how he proposes to ensure that
minorities and women are treated more fairly by the court system.
Minnesota State Bar Association Judicial Elections Task Force
Report & Recommendations, App. C (June 19, 1997), reprinted at
App. 97-103. Whether this list of preapproved subjects, and other
topics not prohibited by the announce clause, adequately fulfill
the First Amendment's guarantee of freedom of speech is the
question to which we now turn.
III
As the Court of Appeals recognized, the announce clause both
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. 247 F. 3d, at 861, 863. The Court of Appeals concluded that
the proper test to be applied to determine the constitutionality of
such a restriction is what our cases have called strict scrutiny,
id., at 864; the parties do not dispute that this is
correct. Under the strict-scrutiny test, respondents have the
burden to prove that the an-
sory Committee to Review the ABA Model Code of Judicial Conduct
and the Rules of the Minnesota Board on Judicial Standards 5-6
(June 29, 1994), reprinted at App. 367-368. The ABA, however,
agrees with respondents' position, Brief for ABA as
Amicus
Curiae 5. We do not know whether the announce clause (as
interpreted by state authorities) and the 1990 ABA canon are one
and the same. No aspect of our constitutional analysis turns on
this question.
775
nounce clause is (1) narrowly tailored, to serve (2) a
compelling state interest.
E. g., Eu v.
San Francisco
County Democratic Central Comm., 489 U. S. 214, 222
(1989). In order for respondents to show that the announce clause
is narrowly tailored, they must demonstrate that it does not
"unnecessarily circumscrib[e] protected expression."
Brown
v.
Hartlage, 456 U. S. 45, 54
(1982).
The Court of Appeals concluded that respondents had established
two interests as sufficiently compelling to justify the announce
clause: preserving the impartiality of the state judiciary and
preserving the appearance of the impartiality of the state
judiciary. 247 F. 3d, at 867. Respondents reassert these two
interests before us, arguing that the first is compelling because
it protects the due process rights of litigants, and that the
second is compelling because it preserves public confidence in the
judiciary.6 Respondents are rather vague, however, about what they
mean by "impartiality." Indeed, although the term is used
throughout the Eighth Circuit's opinion, the briefs, the Minnesota
Code of Judicial Conduct, and the ABA Codes of Judicial Conduct,
none of these sources bothers to define it. Clarity on this point
is essential before we can decide whether impartiality is indeed a
compelling state interest, and, if so, whether the announce clause
is narrowly tailored to achieve it.
A
One meaning of "impartiality" in the judicial context-and of
course its root meaning-is the lack of bias for or against either
party to the proceeding. Impartiality in this sense
6 Although the Eighth Circuit also referred to the compelling
interest in an "independent" judiciary, 247 F. 3d, at 864-868, both
it and respondents appear to use that term, as applied to the
issues involved in this case, as interchangeable with "impartial."
See
id., at 864 (describing a judge's independence as his
"ability to apply the law neutrally"); Brief for Respondents 20, n.
4 ("[J]udicial impartiality is linked to judicial
independence").
776
assures equal application of the law. That is, it guarantees a
party that the judge who hears his case will apply the law to him
in the same way he applies it to any other party. This is the
traditional sense in which the term is used. See Webster's New
International Dictionary 1247 (2d ed. 1950) (defining "impartial"
as "[n]ot partial; esp., not favoring one more than another;
treating all alike; unbiased; equitable; fair; just"). It is also
the sense in which it is used in the cases cited by respondents and
amici for the proposition that an impartial judge is
essential to due process.
Tumey v.
Ohio, 273 U. S. 510, 523,
531-534 (1927) (judge violated due process by sitting in a case in
which it would be in his financial interest to find against one of
the parties);
Aetna Life Ins. Co. v.
Lavoie, 475 U. S. 813, 822-825
(1986) (same);
Ward v.
Monroeville, 409 U. S. 57, 58-62 (1972)
(same);
Johnson v.
Mississippi, 403 U. S. 212, 215-216
(1971)
(per curiam) (judge violated due process by sitting
in a case in which one of the parties was a previously successful
litigant against him);
Bracy v.
Gramley, 520 U. S. 899, 905 (1997)
(would violate due process if a judge was disposed to rule against
defendants who did not bribe him in order to cover up the fact that
he regularly ruled in favor of defendants who did bribe him);
In
re Murchison, 349
U. S. 133, 137-139 (1955) (judge violated due process by
sitting in the criminal trial of defendant whom he had
indicted).
We think it plain that the announce clause is not narrowly
tailored to serve impartiality (or the appearance of impartiality)
in this sense. Indeed, the clause is barely tailored to serve that
interest
at all, inasmuch as it does not restrict speech for
or against particular
parties, but rather speech for or
against particular
issues. To be sure, when a case arises
that turns on a legal issue on which the judge (as a candidate) had
taken a particular stand, the party taking the opposite stand is
likely to lose. But not because of any bias against that party, or
favoritism toward the other party.
777
Any party taking that position is just as likely to lose.
The judge is applying the law (as he sees it) evenhandedly.7
B
It is perhaps possible to use the term "impartiality" in the
judicial context (though this is certainly not a common usage) to
mean lack of preconception in favor of or against a particular
legal view. This sort of impartiality would be concerned,
not with guaranteeing litigants equal application of the law, but
rather with guaranteeing them an equal chance to persuade the court
on the legal points in their case. Impartiality in this sense may
well be an interest served by the announce clause, but it is not a
compelling state interest, as strict scrutiny requires. A
judge's lack of predisposition regarding the relevant legal issues
in a case has never been thought a necessary component of equal
justice, and with good reason. For one thing, it is virtually
impossible to find a judge who does not have preconceptions about
the law. As then-JusTICE REHNQUIST observed of our own Court:
"Since most Justices come to this bench no earlier than their
middle years, it would be unusual if they had not by that time
formulated at least some tentative notions that would influence
them in their interpretation of the sweeping clauses of the
Constitution and their interaction with one another. It would be
not merely unusual, but extraordinary, if they had
7 JUSTICE STEVENS asserts that the announce clause "serves the
State's interest in maintaining both the appearance of this form of
impartiality and its actuality."
Post, at 801. We do not
disagree. Some of the speech prohibited by the announce clause may
well exhibit a bias against parties-including JUSTICE STEVENS'S
example of an election speech stressing the candidate's unbroken
record of affirming convictions for rape,
ante, at 800-801.
That is why we are careful to say that the announce clause is
"barely tailored to serve that interest,"
supra, at
776 (emphasis added). The question under our strict scrutiny test,
however, is not whether the announce clause serves this interest
at all, but whether it is
narrowly tailored to serve
this interest. It is not.
778
not at least given opinions as to constitutional issues in their
previous legal careers."
Laird v.
Tatum, 409 U. S. 824, 835 (1972)
(memorandum opinion). Indeed, even if it were possible to select
judges who did not have preconceived views on legal issues, it
would hardly be desirable to do so. "Proof that a Justice's mind at
the time he joined the Court was a complete
tabula rasa in
the area of constitutional adjudication would be evidence of lack
of qualification, not lack of bias."
Ibid. The Minnesota
Constitution positively forbids the selection to courts of general
jurisdiction of judges who are impartial in the sense of having no
views on the law. Minn. Const., Art. VI, § 5 ("Judges of the
supreme court, the court of appeals and the district court shall be
learned in the law"). And since avoiding judicial preconceptions on
legal issues is neither possible nor desirable, pretending
otherwise by attempting to preserve the "appearance" of that type
of impartiality can hardly be a compelling state interest
either.
C
A third possible meaning of "impartiality" (again not a common
one) might be described as openmindedness. This quality in a judge
demands, not that he have no preconceptions on legal issues, but
that he be willing to consider views that oppose his
preconceptions, and remain open to persuasion, when the issues
arise in a pending case. This sort of impartiality seeks to
guarantee each litigant, not an
equal chance to win the
legal points in the case, but at least
some chance of doing
so. It may well be that impartiality in this sense, and the
appearance of it, are desirable in the judiciary, but we need not
pursue that inquiry, since we do not believe the Minnesota Supreme
Court adopted the announce clause for that purpose.
Respondents argue that the announce clause serves the interest
in openmindedness, or at least in the appearance of openmindedness,
because it relieves a judge from pressure to rule a certain way in
order to maintain consistency with
779
statements the judge has previously made. The problem is,
however, that statements in election campaigns are such an
infinitesimal portion of the public commitments to legal positions
that judges (or judges-to-be) undertake, that this object of the
prohibition is implausible. Before they arrive on the bench
(whether by election or otherwise) judges have often committed
themselves on legal issues that they must later rule upon. See,
e. g., Laird, supra, at 831-833 (describing Justice Black's
participation in several cases construing and deciding the
constitutionality of the Fair Labor Standards Act, even though as a
Senator he had been one of its principal authors; and Chief Justice
Hughes's authorship of the opinion overruling
Adkins v.
Children's Hospital of D. c.,
261 U. S. 525 (1923), a
case he had criticized in a book written before his appointment to
the Court). More common still is a judge's confronting a legal
issue on which he has expressed an opinion while on the bench. Most
frequently, of course, that prior expression will have occurred in
ruling on an earlier case. But judges often state their views on
disputed legal issues outside the context of adjudication-in
classes that they conduct, and in books and speeches. Like the ABA
Codes of Judicial Conduct, the Minnesota Code not only permits but
encourages this. See Minn. Code of Judicial Conduct, Canon 4(B)
(2002) ("A judge may write, lecture, teach, speak and participate
in other extra-judicial activities concerning the law ... "); Minn.
Code of Judicial Conduct, Canon 4(B), Comment. (2002) ("To the
extent that time permits, a judge is encouraged to do so ... ").
That is quite incompatible with the notion that the need for
openmindedness (or for the appearance of openmindedness) lies
behind the prohibition at issue here.
The short of the matter is this: In Minnesota, a candidate for
judicial office may not say "I think it is constitutional for the
legislature to prohibit same-sex marriages." He may say the very
same thing, however, up until the very day before he declares
himself a candidate, and may say it repeat-
780
edly (until litigation is pending) after he is elected. As a
means of pursuing the objective of openmindedness that respondents
now articulate, the announce clause is so woefully underinclusive
as to render belief in that purpose a challenge to the credulous.
See
City of Ladue v.
Gilleo, 512 U. S. 43, 52-53 (1994)
(noting that underinclusiveness "diminish[es] the credibility of
the government's rationale for restricting speech");
Florida
Star v.
B. J. F., 491 U. S. 524, 541-542
(1989) (SCALIA, J., concurring in judgment) ("[A] law cannot be
regarded as protecting an interest of the highest order, and thus
as justifying a restriction upon truthful speech, when it leaves
appreciable damage to that supposedly vital interest unprohibited"
(internal quotation marks and citation omitted)).
JUSTICE STEVENS asserts that statements made in an election
campaign pose a special threat to openmindedness because the
candidate, when elected judge, will have a
particular
reluctance to contradict them.
Post, at 801. That might be
plausible, perhaps, with regard to campaign
promises. A
candidate who says "If elected, I will vote to uphold the
legislature's power to prohibit same-sex marriages" will positively
be breaking his word if he does not do so (although one would be
naive not to recognize that campaign promises are-by long
democratic tradition-the least binding form of human commitment).
But, as noted earlier, the Minnesota Supreme Court has adopted a
separate prohibition on campaign "pledges or promises," which is
not challenged here. The proposition that judges feel significantly
greater compulsion, or appear to feel significantly greater
compulsion, to maintain consistency with
nonpromissory
statements made during a judicial campaign than with such
statements made before or after the campaign is not self-evidently
true. It seems to us quite likely, in fact, that in many cases the
opposite is true. We doubt, for example, that a mere statement of
position enunciated during the pendency of an election will be
regarded by a judge as more binding-or as more likely
781
to subject him to popular disfavor if reconsidered-than a
carefully considered holding that the judge set forth in an earlier
opinion denying some individual's claim to justice. In any event,
it suffices to say that respondents have not carried the burden
imposed by our strict-scrutiny test to establish this proposition
(that campaign statements are uniquely destructive of
openmindedness) on which the validity of the announce clause rests.
See,
e. g., Landmark Communications, Inc. v.
Virginia, 435
U. S. 829, 841 (1978) (rejecting speech restriction subject to
strict scrutiny where the State "offered little more than assertion
and conjecture to support its claim that without criminal sanctions
the objectives of the statutory scheme would be seriously
undermined");
United States v.
Playboy Entertainment
Group, Inc., 529
U. S. 803, 816-825 (2000) (same).8
Moreover, the notion that the special context of electioneering
justifies an
abridgment of the right to speak out on
disputed issues sets our First Amendment jurisprudence on its head.
"[D]ebate on the qualifications of candidates" is "at the core of
our electoral process and of the First Amendment freedoms," not at
the edges.
Eu, 489 U. S., at 222-223 (internal quotation
marks omitted). "The role that elected officials play in our
society makes it all the more imperative that they be allowed
freely to express themselves on matters
8We do not agree with JUSTICE STEVENS'S broad assertion that "to
the extent that [statements on legal issues] seek to enhance the
popularity of the candidate by indicating how he would rule in
specific cases if elected, they evidence
a lack offitness for
office." Post, at 798 (emphasis added). Of course
all
statements on real-world legal issues "indicate" how the speaker
would rule "in specific cases." And if making such statements
(of honestly held views) with the hope of enhancing one's
chances with the electorate displayed a lack of fitness for office,
so would similarly motivated honest statements of judicial
candidates made with the hope of enhancing their chances of
confirmation by the Senate, or indeed of appointment by the
President. Since such statements are made, we think, in every
confirmation hearing, JUSTICE STEVENS must contemplate a federal
bench filled with the unfit.
782
of current public importance."
Wood v.
Georgia,
370 U. S. 375,
395 (1962). "It is simply not the function of government to select
which issues are worth discussing or debating in the course of a
political campaign."
Brown, 456 U. S., at 60 (internal
quotation marks and citation omitted). We have never allowed the
government to prohibit candidates from communicating relevant
information to voters during an election.
JUSTICE GINSBURG would do so-and much of her dissent confirms
rather than refutes our conclusion that the purpose behind the
announce clause is not openmindedness in the judiciary, but the
undermining of judicial elections. She contends that the announce
clause must be constitutional because due process would be denied
if an elected judge sat in a case involving an issue on which he
had previously announced his view.
Post, at 816, 819. She
reaches this conclusion because, she says, such a judge would have
a "direct, personal, substantial, and pecuniary interest" in ruling
consistently with his previously announced view, in order to reduce
the risk that he will be "voted off the bench and thereby lose
[his] salary and emoluments,"
post, at 816 (internal
quotation marks and alterations omitted). But elected
judges-regardless of whether they have announced any views
beforehand-always face the pressure of an electorate who
might disagree with their rulings and therefore vote them off the
bench. Surely the judge who frees Timothy McVeigh places his job
much more at risk than the judge who (horror of horrors!)
reconsiders his previously announced view on a disputed legal
issue. So if, as JUSTICE GINSBURG claims, it violates due process
for a judge to sit in a case in which ruling one way rather than
another increases his prospects for reelection, then-quite
simply-the practice of electing judges is itself a violation of due
process. I t is not difficult to understand how one with these
views would approve the election-nullifying effect of the
announce
783
clause.9 They are not, however, the views reflected in the Due
Process Clause of the Fourteenth Amendment, which has coexisted
with the election of judges ever since it was adopted, see
infra, at 785-786.
JUSTICE GINSBURG devotes the rest of her dissent to attacking
arguments we do not make. For example, despite the number of pages
she dedicates to disproving this proposition,
post, at
805-809, we neither assert nor imply that the First Amendment
requires campaigns for judicial office to sound the same as those
for legislative office.lO What we do assert, and what JUSTICE
GINSBURG ignores, is that,
even if the First Amendment
allows greater regulation of judicial election campaigns than
legislative election campaigns, the announce clause still fails
strict scrutiny because it is woefully underinclusive, prohibiting
announcements by judges (and would-be judges) only at certain times
and in certain forms. We rely on the cases involving speech during
elections,
supra, at 781-782, only to make the obvious point
that this underinclusiveness cannot be explained by resort to the
notion that the First Amendment provides less protection during an
election campaign than at other times.ll
9 JUSTICE GINSBURG argues that the announce clause is not
election nullifying because Wersal criticized past decisions of the
Minnesota Supreme Court in his campaign literature and the Lawyers
Board decided not to discipline him for doing so.
Post, at
811-812. As we have explained, however, had Wersal additionally
stated during his campaign that he did not feel bound to follow
those erroneous decisions, he would not have been so lucky.
Supra, at 772-773. This predicament hardly reflects "the
robust communication of ideas and views from judicial candidate to
voter."
Post, at 812.
10 JUSTICE STEVENS devotes most of his dissent to this same
argument that we do not make.
11 Nor do we assert that candidates for judicial office should
be
compelled to announce their views on disputed
legal issues. Thus, JUSTICE GINSBURG'S repeated invocation of
instances in which nominees to this Court declined to announce such
views during Senate confirmation hearings is pointless.
Post, at 807-808, n. 1, 818-819, n. 4. That the practice
784
But in any case, JUSTICE GINSBURG greatly exaggerates the
difference between judicial and legislative elections. She asserts
that "the rationale underlying unconstrained speech in elections
for political office-that representative government depends on the
public's ability to choose agents who will act at its behest-does
not carry over to campaigns for the bench."
Post, at 806.
This complete separation of the judiciary from the enterprise of
"representative government" might have some truth in those
countries where judges neither make law themselves nor set aside
the laws enacted by the legislature. It is not a true picture of
the American system. Not only do state-court judges possess the
power to "make" common law, but they have the immense power to
shape the States' constitutions as well. See,
e. g.,
Baker v.
State, 170 Vt. 194, 744 A. 2d 864 (1999).
Which is precisely why the election of state judges became
popular.12
of
voluntarily demurring does not establish the
legitimacy of
legal compulsion to demur is amply
demonstrated by the unredacted text of the sentence she quotes in
part,
post, at 819, from
Laird v.
Tatum,
409 U. S. 824,
836, n. 5 (1972):
"In terms of propriety, rather than
disqualification, I would distinguish quite sharply between a
public statement made prior to nomination for the bench, on the one
hand, and a public statement made by a nominee to the bench."
(Emphasis added.)
12 Although JUSTICE STEVENS at times appears to agree with
JUSTICE GINSBURG'S premise that the judiciary is completely
separated from the enterprise of representative government,
post, at 798 ("[E]very good judge is fully aware of the
distinction between the law and a personal point of view"), he
eventually appears to concede that the separation does not hold
true for many judges who sit on courts of last resort,
ante,
at 799 ("If he is not a judge on the highest court in the State, he
has an obligation to follow the precedent of that court, not his
personal views or public opinion polls");
post, at 799, n.
2. Even if the policymaking capacity of judges were limited to
courts of last resort, that would only prove that the announce
clause fails strict scrutiny. "[I]f announcing one's views in the
context of a campaign for the State Supreme Court might be"
protected speech,
ibid., then-even if announcing one's views
in the context of a campaign for a lower court were
not
protected speech,
ibid.-the announce clause would not be
narrowly tailored, since it applies to high-
785
IV
To sustain the announce clause, the Eighth Circuit relied
heavily on the fact that a pervasive practice of prohibiting
judicial candidates from discussing disputed legal and political
issues developed during the last half of the 20th century. 247 F.
3d, at 879-880. It is true that a "universal and longestablished"
tradition of prohibiting certain conduct creates "a strong
presumption" that the prohibition is constitutional:
"Principles of liberty fundamental enough to have been embodied
within constitutional guarantees are not readily erased from the
Nation's consciousness."
McIntyre v.
Ohio Elections
Comm'n, 514 U. S.
334, 375-377 (1995) (SCALIA, J., dissenting). The practice of
prohibiting speech by judicial candidates on disputed issues,
however, is neither long nor universal.
At the time of the founding, only Vermont (before it became a
State) selected any of its judges by election. Starting with
Georgia in 1812, States began to provide for judicial election, a
development rapidly accelerated by Jacksonian democracy. By the
time of the Civil War, the great majority of States elected their
judges. E. Haynes, Selection and Tenure of Judges 99-135 (1944);
Berkson, Judicial Selection in the United States: A Special Report,
64 Judicature 176 (1980). We know of no restrictions upon
statements that could be made by judicial candidates (including
judges) throughout the 19th and the first quarter of the 20th
century. Indeed, judicial elections were generally partisan during
this period, the movement toward nonpartisan judicial elections not
even beginning until the 1870's.
Id., at 176-177;
and low-court candidates alike. In fact, however, the judges of
inferior courts
often "make law," since the precedent of the
highest court does not cover every situation, and not every case is
reviewed. JUSTICE STEVENS has repeatedly expressed the view that a
settled course of lower court opinions binds the highest court.
See,
e. g., Reves v.
Ernst &
Young, 494 U.
S. 56, 74 (1990) (concurring opinion);
McNally v.
United
States, 483 U. S.
350, 376-377 (1987) (dissenting opinion).
786
M. Comisky & P. Patterson, The Judiciary-Selection,
Compensation, Ethics, and Discipline 4, 7 (1987). Thus, not only
were judicial candidates (including judges) discussing disputed
legal and political issues on the campaign trail, but they were
touting party affiliations and angling for party nominations all
the while.
The first code regulating judicial conduct was adopted by the
ABA in 1924. 48 ABA Reports 74 (1923) (report of Chief Justice
Taft); P. McFadden, Electing Justice: The Law and Ethics of
Judicial Election Campaigns 86 (1990). It contained a provision
akin to the announce clause: "A candidate for judicial position ...
should not announce in advance his conclusions of law on disputed
issues to secure class support .... " ABA Canon of Judicial Ethics
30 (1924). The States were slow to adopt the canons, however. "By
the end of World War II, the canons ... were binding by the bar
associations or supreme courts of only eleven states." J.
MacKenzie, The Appearance of Justice 191 (1974). Even today,
although a majority of States have adopted either the announce
clause or its 1990 ABA successor, adoption is not unanimous. Of the
31 States that select some or all of their appellate and
general-jurisdiction judges by election, see American Judicature
Society, Judicial Selection in the States:
Appellate and General Jurisdiction Courts (Apr. 2002), 4 have
adopted no candidate-speech restriction comparable to the announce
clause,13 and 1 prohibits only the discussion of "pending
litigation." 14 This practice, relatively new to judicial elections
and still not universally adopted, does not compare well with the
traditions deemed worthy of our attention in prior cases.
E.
g., Burson v.
Freeman, 504 U. S. 191,205206
(1992) (crediting tradition of prohibiting speech around
13 Idaho Code of Judicial Conduct, Canon 7 (2001); Mich. Code of
Judicial Conduct, Canon 7 (2002); N. C. Code of Judicial Conduct,
Canon 7 (2001); Ore. Code of Judicial Conduct, Rule 4-102 (2002).
All of these States save Idaho have adopted the pledges or promises
clause.
14 Ala. Canon of Judicial Ethics 7(B)(1)(c) (2002).
787
polling places that began with the very adoption of the secret
ballot in the late 19th century, and in which every State
participated);
id., at 214-216 (SCALIA, J., concurring in
judgment) (same);
McIntyre, supra, at 375-377 (SCALIA, J.,
dissenting) (crediting tradition of prohibiting anonymous election
literature, which again began in 1890 and was universally
adopted).
***
There is 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
candidate-speech restrictions of all the other States that have
them are also the product of judicial fiat.15) The disparity is
perhaps unsurprising, since the ABA, which originated the announce
clause, has long been an opponent of judicial elections. See ABA
Model Code of Judicial Conduct, Canon
5(C)(2), Comment
(2000) ("[M]erit selection of judges is a preferable manner in
which to select the judiciary"); An Independent Judiciary: Report
of the ABA Commission on Separation of Powers and Judicial
Independence 96 (1997) ("The American Bar Association strongly
endorses the merit selection of judges, as opposed to their
election .... Five times between August 1972 and August 1984 the
House of Delegates has approved recommendations stating the
preference for merit selection and encouraging bar associations in
jurisdictions where judges are elected ... to work for the adoption
of merit selection and retention"). That opposition may be well
taken (it certainly had the sup-
15 These restrictions are all contained in these States' codes
of judicial conduct, App. to Brief for ABA as
Amicus Curiae.
"In every state, the highest court promulgates the Code of Judicial
Conduct, either by express constitutional provision, statutory
authorization, broad constitutional grant, or inherent power." In
the Supreme Court of Texas: Per Curiam Opinion Concerning
Amendments to Canons 5 and 6 of the Code of Judicial Conduct, 61
Tex. B. J. 64, 66 (1998) (collecting provisions).
788
port of the Founders of the Federal Government), but the First
Amendment does not permit it to achieve its goal by leaving the
principle of elections in place while preventing candidates from
discussing what the elections are about. "[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."
Renne v.
Geary, 501 U. S. 312, 349 (1991)
(Marshall, J., dissenting); accord,
Meyer v.
Grant,
486 U. S. 414,
424425 (1988) (rejecting argument that the greater power to end
voter initiatives includes the lesser power to prohibit paid
petition-circulators).
The Minnesota Supreme Court's canon of judicial conduct
prohibiting candidates for judicial election from announcing their
views on disputed legal and political issues violates the First
Amendment. Accordingly, we reverse the grant of summary judgment to
respondents and remand the case for proceedings consistent with
this opinion.
It is so ordered.
JUSTICE O'CONNOR, concurring.
I join the opinion of the Court but write separately to express
my concerns about judicial elections generally. Respondents claim
that "[t]he Announce Clause is necessary ... to protect the State's
compelling governmental interes[t] in an actual and perceived ...
impartial judiciary." Brief for Respondents 8. I am concerned that,
even aside from what judicial candidates may say while campaigning,
the very practice of electing judges undermines this interest.
We of course want judges to be impartial, in the sense of being
free from any personal stake in the outcome of the cases to which
they are assigned. But if judges are subject to regular elections
they are likely to feel that they have at
789
least some personal stake in the outcome of every publicized
case. Elected judges cannot help being aware that if the public is
not satisfied with the outcome of a particular case, it could hurt
their reelection prospects. See Eule, Crocodiles in the Bathtub:
State Courts, Voter Initiatives and the Threat of Electoral
Reprisal, 65 U. Colo. L. Rev. 733, 739 (1994) (quoting former
California Supreme Court Justice Otto Kaus' statement that ignoring
the political consequences of visible decisions is "'like ignoring
a crocodile in your bathtub' "); Bright & Keenan, Judges and
the Politics of Death: Deciding Between the Bill of Rights and the
Next Election in Capital Cases, 75 B. U. L. Rev. 759, 793-794
(1995) (citing statistics indicating that judges who face elections
are far more likely to override jury sentences of life without
parole and impose the death penalty than are judges who do not run
for election). Even if judges were able to suppress their awareness
of the potential electoral consequences of their decisions and
refrain from acting on it, the public's confidence in the judiciary
could be undermined simply by the possibility that judges would be
unable to do so.
Moreover, contested elections generally entail campaigning. And
campaigning for a judicial post today can require substantial
funds. See Schotland, Financing Judicial Elections, 2000: Change
and Challenge, 2001 L. Rev. Mich. State U. Detroit College of Law
849, 866 (reporting that in 2000, the 13 candidates in a partisan
election for 5 seats on the Alabama Supreme Court spent an average
of $1,092,076 on their campaigns); American Bar Association, Report
and Recommendations of the Task Force on Lawyers' Political
Contributions, pt. 2 (July 1998) (reporting that in 1995, one
candidate for the Pennsylvania Supreme Court raised $1,848,142 in
campaign funds, and that in 1986, $2,700,000 was spent on the race
for Chief Justice of the Ohio Supreme Court). Unless the pool of
judicial candidates is limited to those wealthy enough to
independently fund their campaigns, a limitation unrelated to
judicial skill, the cost of
790
campaigning requires judicial candidates to engage in
fundraising. Yet relying on campaign donations may leave judges
feeling indebted to certain parties or interest groups. See Thomas,
National L. J., Mar. 16, 1998, p. A8, col. 1 (reporting that a
study by the public interest group Texans for Public Justice found
that 40 percent of the $9,200,000 in contributions of $100 or more
raised by seven of Texas' nine Supreme Court justices for their
1994 and 1996 elections "came from parties and lawyers with cases
before the court or contributors closely linked to these parties").
Even if judges were able to refrain from favoring donors, the mere
possibility that judges' decisions may be motivated by the desire
to repay campaign contributors is likely to undermine the public's
confidence in the judiciary. See Greenberg Quinlan Rosner Research,
Inc., and American Viewpoint, National Public Opinion Survey
Frequency Questionnaire 4 (2001) (available at
http://www.justiceatstake. org/files/JASN ationalSurvey
Results.pdf) (describing survey results indicating that 76 percent
of registered voters believe that campaign contributions influence
judicial decisions);
id., at 7 (describing survey results
indicating that two-thirds of registered voters believe individuals
and groups who give money to judicial candidates often receive
favorable treatment); Barnhizer, "On the Make": Campaign Funding
and the Corrupting of the American Judiciary, 50 Cath. U. L. Rev.
361, 379 (2001) (relating anecdotes of lawyers who felt that their
contributions to judicial campaigns affected their chance of
success in court).
Despite these significant problems, 39 States currently employ
some form of judicial elections for their appellate courts, general
jurisdiction trial courts, or both. American Judicature Society,
Judicial Selection in the States: Appellate and General
Jurisdiction Courts (Apr. 2002). Judicial elections were not always
so prevalent. The first 29 States of the Union adopted methods for
selecting judges that did not involve popular elections. See
Croley, The Majoritarian Dif-
791
ficulty: Elective Judiciaries and the Rule of Law, 62 U. Chi. L.
Rev. 689, 716 (1995). As the Court explains, however, beginning
with Georgia in 1812, States began adopting systems for judicial
elections. See
ante, at 785. From the 1830's until the
1850's, as part of the Jacksonian movement toward greater popular
control of public office, this trend accelerated, see Goldschmidt,
Merit Selection: Current Status, Procedures, and Issues, 49 U.
Miami L. Rev. 1, 5 (1994), and by the Civil War, 22 of the 34
States elected their judges,
ibid. By the beginning of the
20th century, however, elected judiciaries increasingly came to be
viewed as incompetent and corrupt, and criticism of partisan
judicial elections mounted. Croley,
supra, at 723. In 1906,
Roscoe Pound gave a speech to the American Bar Association in which
he claimed that "compelling judges to become politicians, in many
jurisdictions has almost destroyed the traditional respect for the
bench." The Causes of Popular Dissatisfaction with the
Administration of Justice, 8 Baylor L. Rev. 1, 23 (1956)
(reprinting Pound's speech).
In response to such concerns, some States adopted a modified
system of judicial selection that became known as the Missouri Plan
(because Missouri was the first State to adopt it for most of its
judicial posts). See Croley, 62 U. Chi. L. Rev., at 724. Under the
Missouri Plan, judges are appointed by a high elected official,
generally from a list of nominees put together by a nonpartisan
nominating commission, and then subsequently stand for unopposed
retention elections in which voters are asked whether the judges
should be recalled.
Ibid. If a judge is recalled, the
vacancy is filled through a new nomination and appointment.
Ibid. This system obviously reduces threats to judicial
impartiality, even if it does not eliminate all popular pressure on
judges. See Grodin, Developing a Consensus of Constraint:
A Judge's Perspective on Judicial Retention Elections, 61 S.
Cal. L. Rev. 1969, 1980 (1988) (admitting that he cannot be sure
that his votes as a California Supreme Court Justice
792
in "critical cases" during 1986 were not influenced
subconsciously by his awareness that the outcomes could affect his
chances in the retention elections being conducted that year). The
Missouri Plan is currently used to fill at least some judicial
offices in 15 States. Croley,
supra, at 725-726; American
Judicature Society,
supra.
Thirty-one States, however, still use popular elections to
select some or all of their appellate and/or general jurisdiction
trial court judges, who thereafter run for reelection periodically.
Ibid. Of these, slightly more than half use nonpartisan
elections, and the rest use partisan elections.
Ibid. Most
of the States that do not have any form of judicial elections
choose judges through executive nomination and legislative
confirmation. See Croley,
supra, at 725.
Minnesota has chosen to select its judges through contested
popular elections instead of through an appointment system or a
combined appointment and retention election system along the lines
of the Missouri Plan. In doing so the State has voluntarily taken
on the risks to judicial bias described above. 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.
JUSTICE KENNEDY, concurring.
I agree with the Court that Minnesota's prohibition on judicial
candidates' announcing their legal views is an unconstitutional
abridgment of the freedom of speech. There is authority for the
Court to apply strict scrutiny analysis to resolve some First
Amendment cases, see,
e. g., Simon & Schuster, Inc. v.
Members of N.
Y. State Crime Victims Bd., 502 U. S. 105 (1991), and
the Court explains in clear and forceful terms why the Minnesota
regulatory scheme fails that test. So I join its opinion.
793
I adhere to my view, however, that content-based speech
restrictions that do not fall within any traditional exception
should be invalidated without inquiry into narrow tailoring or
compelling government interests. The speech at issue here does not
come within any of the exceptions to the First Amendment recognized
by the Court. "Here, a law is directed to speech alone where the
speech in question is not obscene, not defamatory, not words
tantamount to an act otherwise criminal, not an impairment of some
other constitutional right, not an incitement to lawless action,
and not calculated or likely to bring about imminent harm the State
has the substantive power to prevent. No further inquiry is
necessary to reject the State's argument that the statute should be
upheld."
Id., at 124 (KENNEDY, J., concurring in judgment).
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.
Here, Minnesota has sought to justify its speech restriction as
one necessary to maintain the integrity of its judiciary. Nothing
in the Court's opinion should be read to cast doubt on the vital
importance of this state interest. Courts, in our system, elaborate
principles of law in the course of resolving disputes. The power
and the prerogative of a court to perform this function rest, in
the end, upon the respect accorded to its judgments. The citizen's
respect for judgments depends in turn upon the issuing court's
absolute probity. Judicial integrity is, in consequence, a state
interest of the highest order.
Articulated standards of judicial conduct may advance this
interest. See Shepard, Campaign Speech: Restraint and Liberty in
Judicial Ethics, 9 Geo. J. Legal Ethics 1059 (1996). To comprehend,
then to codify, the essence of judicial integrity is a hard task,
however. "The work of deciding cases goes on every day in hundreds
of courts throughout the land. Any judge, one might suppose, would
find it easy to describe
794
the process which he had followed a thousand times and more.
Nothing could be farther from the truth." B. Cardozo, The Nature of
the Judicial Process 9 (1921). Much the same can be said of
explicit standards to ensure judicial integrity. To strive for
judicial integrity is the work of a lifetime. That should not
dissuade the profession. The difficulty of the undertaking does not
mean we should refrain from the attempt. Explicit standards of
judicial conduct provide essential guidance for judges in the
proper discharge of their duties and the honorable conduct of their
office. The legislative bodies, judicial committees, and
professional associations that promulgate those standards perform a
vital public service. See,
e. g., Administrative
Office of U. S. Courts, Code of Judicial Conduct for United States
Judges (1999). Yet these standards may not be used by the State to
abridge the speech of aspiring judges in a judicial campaign.
Minnesota may choose to have an elected judiciary. It may strive
to define those characteristics that exemplify judicial excellence.
It may enshrine its definitions in a code of judicial conduct. It
may adopt recusal standards more rigorous than due process
requires, and censure judges who violate these standards. What
Minnesota may not do, however, is censor what the people hear as
they undertake to decide for themselves which candidate is most
likely to be an exemplary judicial officer. Deciding the relevance
of candidate speech is the right of the voters, not the State. See
Brown v.
Hartlage, 456 U. S. 45, 60 (1982).
The law in question here contradicts the principle that unabridged
speech is the foundation of political freedom.
The State of Minnesota no doubt was concerned, as many citizens
and thoughtful commentators are concerned, that judicial campaigns
in an age of frenetic fundraising and mass media may foster
disrespect for the legal system. Indeed, from the beginning there
have been those who believed that the rough-and-tumble of politics
would bring our governmental institutions into ill repute. And some
have sought to
795
cure this tendency with governmental restrictions on political
speech. See Sedition Act of 1798, ch. 74, 1 Stat. 596. Cooler heads
have always recognized, however, that these measures abridge the
freedom of speech-not because the state interest is insufficiently
compelling, but simply because content-based restrictions on
political speech are" 'expressly and positively forbidden by''' the
First Amendment. See
New York Times Co. v.
Sullivan,
376 U. S. 254,
274 (1964) (quoting the Virginia Resolutions of 1798). The State
cannot opt for an elected judiciary and then assert that its
democracy, in order to work as desired, compels the abridgment of
speech.
If Minnesota believes that certain sorts of candidate speech
disclose flaws in the candidate's credentials, democracy and free
speech are their own correctives. The legal profession, the legal
academy, the press, voluntary groups, political and civic leaders,
and all interested citizens can use their own First Amendment
freedoms to protest statements inconsistent with standards of
judicial neutrality and judicial excellence. Indeed, if democracy
is to fulfill its promise, they must do so. They must reach voters
who are uninterested or uninformed or blinded by partisanship, and
they must urge upon the voters a higher and better understanding of
the judicial function and a stronger commitment to preserving its
finest traditions. Free elections and free speech are a powerful
combination: Together they may advance our understanding of the
rule of law and further a commitment to its precepts.
There is general consensus that the design of the Federal
Constitution, including lifetime tenure and appointment by
nomination and confirmation, has preserved the independence of the
Federal Judiciary. In resolving this case, however, we should
refrain from criticism of the State's choice to use open elections
to select those persons most likely to achieve judicial excellence.
States are free to choose this mechanism rather than, say,
appointment and confirmation.
796
By condemning judicial elections across the board, we implicitly
condemn countless elected state judges and without warrant. Many of
them, despite the difficulties imposed by the election system, have
discovered in the law the enlightenment, instruction, and
inspiration that make them independent-minded and faithful jurists
of real integrity. We should not, even by inadvertence, "impute to
judges a lack of firmness, wisdom, or honor."
Bridges v.
California, 314 U. S. 252, 273
(1941).
These considerations serve but to reinforce the conclusion that
Minnesota's regulatory scheme is flawed. By abridging speech based
on its content, Minnesota impeaches its own system of free and open
elections. The State may not regulate the content of candidate
speech merely because the speakers are candidates. This case does
not present the question whether a State may restrict the speech of
judges because they are judges-for example, as part of a code of
judicial conduct; the law at issue here regulates judges only when
and because they are candidates. Whether the rationale of
Pickering v.
Board of Ed. of Township High School
Dist.205, Will Cty., 391 U. S. 563, 568
(1968), and
Connick v.
Myers, 461 U. S. 138 (1983),
could be extended to allow a general speech restriction on sitting
judges-regardless of whether they are campaigning-in order to
promote the efficient administration of justice, is not an issue
raised here.
Petitioner Gregory Wersal was not a sitting judge but a
challenger; he had not voluntarily entered into an employment
relationship with the State or surrendered any First Amendment
rights. His speech may not be controlled or abridged in this
manner. Even the undoubted interest of the State in the excellence
of its judiciary does not allow it to restrain candidate speech by
reason of its content. Minnesota's attempt to regulate campaign
speech is impermissible.
797
JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and
JUSTICE BREYER join, dissenting.
In her dissenting opinion, JUSTICE GINSBURG has cogently
explained why the Court's holding is unsound. I therefore join her
opinion without reservation. I add these comments to emphasize the
force of her arguments and to explain why I find the Court's
reasoning even more troubling than its holding. The limits of the
Court's holding are evident: Even if the Minnesota Lawyers
Professional Responsibility Board (Board) may not sanction a
judicial candidate for announcing his views on issues likely to
come before him, it may surely advise the electorate that such
announcements demonstrate the speaker's unfitness for judicial
office. If the solution to harmful speech must be more speech, so
be it. The Court's reasoning, however, will unfortunately endure
beyond the next election cycle. By obscuring the fundamental
distinction between campaigns for the judiciary and the political
branches, and by failing to recognize the difference between
statements made in articles or opinions and those made on the
campaign trail, the Court defies any sensible notion of the
judicial office and the importance of impartiality in that
context.
The Court's disposition rests on two seriously flawed
premises-an inaccurate appraisal of the importance of judicial
independence and impartiality, and an assumption that judicial
candidates should have the same freedom" 'to express themselves on
matters of current public importance'" as do all other elected
officials.
Ante, at 781-782. Elected judges, no less than
appointed judges, occupy an office of trust that is fundamentally
different from that occupied by policymaking officials. Although
the fact that they must stand for election makes their job more
difficult than that of the tenured judge, that fact does not lessen
their duty to respect essential attributes of the judicial office
that have been embedded in Anglo-American law for centuries.
798
There is a critical difference between the work of the judge and
the work of other public officials. In a democracy, issues of
policy are properly decided by majority vote; it is the business of
legislators and executives to be popular. But in litigation, issues
of law or fact should not be determined by popular vote; it is the
business of judges to be indifferent to unpopularity. Sir Matthew
Hale pointedly described this essential attribute of the judicial
office in words which have retained their integrity for
centuries:
"'11. That popular or court applause or distaste have no
influence in anything I do, in point of distribution of
justice.
"'12. Not to be solicitous what men will say or think, so long
as I keep myself exactly according to the rule of justice.'" 1
Consistent with that fundamental attribute of the office,
countless judges in countless cases routinely make rulings that are
unpopular and surely disliked by at least 50 percent of the
litigants who appear before them. It is equally common for them to
enforce rules that they think unwise, or that are contrary to their
personal predilections. For this reason, opinions that a lawyer may
have expressed before becoming a judge, or a judicial candidate, do
not disqualify anyone for judicial service because every good judge
is fully aware of the distinction between the law and a personal
point of view. It is equally clear, however, that such expressions
after a lawyer has been nominated to judicial office shed little,
if any, light on his capacity for judicial service. Indeed, to the
extent that such statements seek to enhance the popularity of the
candidate by indicating how he would rule in specific cases if
elected, they evidence a lack of fitness for the office.
12 J. Campbell, Lives of the Chief Justices of England 208
(1873) (quoting Hale's Rules For His Judicial Guidance, Things
Necessary to be Continually Had in Remembrance).
799
Of course, any judge who faces reelection may believe that he
retains his office only so long as his decisions are popular.
Nevertheless, the elected judge, like the lifetime appointee, does
not serve a constituency while holding that office. He has a duty
to uphold the law and to follow the dictates of the Constitution.
If he is not a judge on the highest court in the State, he has an
obligation to follow the precedent of that court, not his personal
views or public opinion polls.2 He may make common law, but judged
on the merits of individual cases, not as a mandate from the
voters.
By recognizing a conflict between the demands of electoral
politics and the distinct characteristics of the judiciary, we
2 The Court largely ignores the fact that judicial elections are
not limited to races for the highest court in the State. Even if
announcing one's views in the context of a campaign for the State
Supreme Court might be permissible, the same statements are surely
less appropriate when one is running for an intermediate or trial
court judgeship. Such statements not only display a
misunderstanding of the judicial role, but also mislead the voters
by giving them the false impression that a candidate for the trial
court will be able to and should decide cases based on his personal
views rather than precedent.
Indeed, the Court's entire analysis has a hypothetical quality
to it that stems, in part, from the fact that no candidate has yet
been sanctioned for violating the announce clause. The one
complaint filed against petitioner Gregory Wersal for campaign
materials during his 1996 election run was dismissed by the Board.
App. 16-21. Moreover, when Wersal sought an advisory opinion during
his 1998 campaign, the Board could not evaluate his request because
he had "not specified what statement [he] would make that mayor may
not be a view on a disputed, legal or political issue."
Id.,
at 32. Since Wersal failed to provide examples of statements he
wished to make, and because the Board had its own doubts about the
constitutionality of the announce clause, it advised Wersal that
"unless the speech at issue violates other prohibitions listed in
Canon 5 or other portions of the Code of Judicial Conduct, it is
our belief that this section is not, as written, constitutionally
enforceable."
Ibid. Consequently, the Court is left to
decide a question of great constitutional importance in a case in
which either the petitioner's statements were not subject to the
prohibition in question, or he neglected to supply any concrete
examples of statements he wished to make, and the Board refused to
enforce the prohibition because of its own constitutional
concerns.
800
do not have to put States to an all or nothing choice of
abandoning judicial elections or having elections in which anything
goes. As a practical matter, we cannot know for sure whether an
elected judge's decisions are based on his interpretation of the
law or political expediency. In the absence of reliable evidence
one way or the other, a State may reasonably presume that elected
judges are motivated by the highest aspirations of their office.
But we do know that a judicial candidate, who announces his views
in the context of a campaign, is effectively telling the
electorate: "Vote for me because I believe X, and I will judge
cases accordingly." Once elected, he may feel free to disregard his
campaign statements,
ante, at 780-781, but that does not
change the fact that the judge announced his position on an issue
likely to come before him
as a reason to vote for him.
Minnesota has a compelling interest in sanctioning such
statements.
A candidate for judicial office who goes beyond the expression
of "general observation about the law ... in order to obtain
favorable consideration" of his candidacy,
Laird v.
Tatum, 409 U.
S. 824, 836, n. 5 (1972) (memorandum of REHNQUIST, J., on
motion for recusal), demonstrates either a lack of impartiality or
a lack of understanding of the importance of maintaining public
confidence in the impartiality of the judiciary. It is only by
failing to recognize the distinction, clearly stated by
then-JusTIcE REHNQUIST, between statements made during a campaign
or confirmation hearing and those made before announcing one's
candidacy, that the Court is able to conclude: "[S]ince avoiding
judicial preconceptions on legal issues is neither possible nor
desirable, pretending otherwise by attempting to preserve the
'appearance' of that type of impartiality can hardly be a
compelling state interest either,"
ante, at 778.
Even when "impartiality" is defined in its narrowest sense to
embrace only "the lack of bias for or against either
party
to the proceeding,"
ante, at 775, the announce clause serves
that interest. Expressions that stress a candidate's unbro-
801
ken record of affirming convictions for rape,3 for example,
imply a bias in favor of a particular litigant (the prosecutor) and
against a class of litigants (defendants in rape cases). Contrary
to the Court's reasoning in its first attempt to define
impartiality,
ante, at 775-776, an interpretation of the
announce clause that prohibits such statements serves the State's
interest in maintaining both the appearance of this form of
impartiality and its actuality.
When the Court evaluates the importance of impartiality in its
broadest sense, which it describes as "the interest in
openmindedness, or at least in the appearance of openmindedness,"
ante, at 778, it concludes that the announce clause is "so
woefully underinclusive as to render belief in that purpose a
challenge to the credulous,"
ante, at 780. It is
underinclusive, in the Court's view, because campaign statements
are an infinitesimal portion of the public commitments to legal
positions that candidates make during their professional careers.
It is not, however, the number of legal views that a candidate may
have formed or discussed in his prior career that is significant.
Rather, it is the ability both to reevaluate them in the light of
an adversarial presentation, and to apply the governing rule of law
even when inconsistent with those views, that characterize judicial
openmindedness.
The Court boldly asserts that respondents have failed to carry
their burden of demonstrating "that campaign statements are
uniquely destructive of openmindedness,"
ante, at 781. But
the very purpose of most statements prohibited by the announce
clause is to convey the message that the candidate's mind is not
open on a particular issue. The lawyer who writes an article
advocating harsher penalties for polluters surely does not commit
to that position to the same degree as the candidate who says "vote
for me because I believe all polluters deserve harsher penalties."
At the
3 See Buckley v. Illinois Judicial Inquiry Bd.,
997 F.2d
224, 226 (CA7 1993).
802
very least, such statements obscure the appearance of
openmindedness. More importantly, like the reasoning in the Court's
opinion, they create the false impression that the standards for
the election of political candidates apply equally to candidates
for judicial office.4
The Court seems to have forgotten its prior evaluation of the
importance of maintaining public confidence in the
"disinterestedness" of the judiciary. Commenting on the danger that
participation by judges in a political assignment might erode that
public confidence, we wrote: "While the problem of individual bias
is usually cured through recusal, no such mechanism can overcome
the appearance of institutional partiality that may arise from
judiciary involvement in the making of policy. The legitimacy of
the Judicial Branch ultimately depends on its reputation for
impartiality and nonpartisanship. That reputation may not be
borrowed by the political Branches to cloak their work in the
neutral colors of judicial action."
Mistretta v.
United
States, 488 U. S. 361, 407 (1989).
Conversely, the judicial reputation for impartiality and
openmindedness is compromised by electioneering that emphasizes the
candidate's personal predilections rather than his qualifications
for judicial office. As an elected judge recently noted:
"Informed criticism of court rulings, or of the professional or
personal conduct of judges, should play an
4JUSTICE KENNEDY would go even further and hold that no
contentbased restriction of a judicial candidate's speech is
permitted under the First Amendment.
Ante, at 793
(concurring opinion). While he does not say so explicitly, this
extreme position would preclude even Minnesota's prohibition
against "pledges or promises" by a candidate for judicial office.
Minn. Code of Judicial Conduct, Canon 5(A)(3)(d)(i) (2002). A
candidate could say "vote for me because I promise to never reverse
a rape conviction," and the Board could do nothing to formally
sanction that candidate. The unwisdom of this proposal illustrates
why the same standards should not apply to speech in campaigns for
judicial and legislative office.
803
important role in maintaining judicial accountability. However,
attacking courts and judges-not because they are wrong on the law
or the facts of a case, but because the decision is considered
wrong simply as a matter of political judgment-maligns one of the
basic tenets of judicial independence-intellectual honesty and
dedication to enforcement of the rule of law regardless of popular
sentiment. Dedication to the rule of law requires judges to rise
above the political moment in making judicial decisions. What is so
troubling about criticism of court rulings and individual judges
based solely on political disagreement with the outcome is that it
evidences a fundamentally misguided belief that the judicial branch
should operate and be treated just like another constituency-driven
political arm of government. Judges should not have 'political
constituencies.' Rather, a judge's fidelity must be to enforcement
of the rule of law regardless of perceived popular will." De Muniz,
Politicizing State Judicial Elections: A Threat to Judicial
Independence, 38 Willamette L. Rev. 367, 387 (2002).
The disposition of this case on the flawed premise that the
criteria for the election to judicial office should mirror the
rules applicable to political elections is profoundly misguided. I
therefore respectfully dissent.
JUSTICE GINSBURG, with whom JUSTICE STEVENS, JusTICE SOUTER, and
JUSTICE BREYER join, dissenting.
Whether state or federal, elected or appointed, judges perform a
function fundamentally different from that of the people's elected
representatives. Legislative and executive officials act on behalf
of the voters who placed them in office; "judge[s] represen[t] the
Law."
Chisom v.
Roemer, 501 U. S. 380, 411 (1991)
(SCALIA, J., dissenting). Unlike their counterparts in the
political branches, judges are expected to
804
refrain from catering to particular constituencies or committing
themselves on controversial issues in advance of adversarial
presentation. Their mission is to decide "individual cases and
controversies" on individual records,
Plaut v.
Spendthrift Farm, Inc., 514 U. S. 211, 266 (1995)
(STEVENS, J., dissenting), neutrally applying legal principles,
and, when necessary, "stand[ing] up to what is generally supreme in
a democracy: the popular will," Scalia, The Rule of Law as a Law of
Rules, 56 U. Chi. L. Rev. 1175, 1180 (1989).
A judiciary capable of performing this function, owing fidelity
to no person or party, is a "longstanding AngloAmerican tradition,"
United States v.
Will, 449 U. S. 200, 217
(1980), an essential bulwark of constitutional government, a
constant guardian of the rule of law. The guarantee of an
independent, impartial judiciary enables society to "withdraw
certain subjects from the vicissitudes of political controversy, to
place them beyond the reach of majorities and officials and to
establish them as legal principles to be applied by the courts."
West Virginia Bd. of Ed. v.
Barnette, 319 U. S. 624, 638
(1943). "Without this, all the reservations of particular rights or
privileges would amount to nothing." The Federalist No. 78, p. 466
(C. Rossiter ed. 1961).
The ability of the judiciary to discharge its unique role rests
to a large degree on the manner in which judges are selected. The
Framers of the Federal Constitution sought to advance the judicial
function through the structural protections of Article III, which
provide for the selection of judges by the President on the advice
and consent of the Senate, generally for lifetime terms. Through
its own Constitution, Minnesota, in common with most other States,
has decided to allow its citizens to choose judges directly in
periodic elections. But Minnesota has not thereby opted to install
a corps of political actors on the bench; rather, it has endeavored
to preserve the integrity of its judiciary by other means.
Recognizing that the influence of political parties is incompatible
with the judge's role, for example, Minnesota
805
has designated all judicial elections nonpartisan. See
Peterson v.
Stafford, 490 N. W. 2d 418, 425 (Minn.
1992). And it has adopted a provision, here called the Announce
Clause, designed to prevent candidates for judicial office from
"publicly making known how they would decide issues likely to come
before them as judges."
Republican Party of Minn.
The question this case presents is whether the First Amendment
stops Minnesota from furthering its interest in judicial integrity
through this precisely targeted speech restriction.
I
The speech restriction must fail, in the Court's view, because
an electoral process is at stake; if Minnesota opts to elect its
judges, the Court asserts, the State may not rein in what
candidates may say. See
ante, at 781 (notion that "right to
speak out on disputed issues" may be abridged in an election
context "sets our First Amendment jurisprudence on its head");
ante, at 787-788 (power to dispense with elections does not
include power to curtail candidate speech if State leaves election
process in place); 247 F. 3d, at 897 (Beam, J., dissenting)
("[W]hen a state opts to hold an election, it must commit itself to
a complete election, replete with free speech and association.");
id., at 903 (same).
I do not agree with this unilocular, "an election is an
election," approach. Instead, I would differentiate elections for
political offices, in which the First Amendment holds full sway,
from elections designed to select those whose office it is to
administer justice without respect to persons. Minnesota's choice
to elect its judges, I am persuaded, does not preclude the State
from installing an election process geared to the judicial
office.
Legislative and executive officials serve in representative
capacities. They are agents of the people; their primary function
is to advance the interests of their constituencies. Candidates for
political offices, in keeping with their repre-
806
sentative role, must be left free to inform the electorate of
their positions on specific issues. Armed with such information,
the individual voter will be equipped to cast her ballot
intelligently, to vote for the candidate committed to positions the
voter approves. Campaign statements committing the candidate to
take sides on contentious issues are therefore not only appropriate
in political elections; they are "at the core of our electoral
process,"
Williams v.
Rhodes, 393 U. S. 23, 32 (1968),
for they "enhance the accountability of government officials to the
people whom they represent,"
Brown v.
Hartlage,
456 U. S. 45, 55
(1982).
Judges, however, are not political actors. They do not sit as
representatives of particular persons, communities, or parties;
they serve no faction or constituency. "[I]t is the business of
judges to be indifferent to popularity."
Chisom, 501 U. S.,
at 401, n. 29 (internal quotation marks omitted). They must strive
to do what is legally right, all the more so when the result is not
the one "the home crowd" wants. Rehnquist, Dedicatory Address: Act
Well Your Part: Therein All Honor Lies, 7 Pepperdine L. Rev. 227,
229-300 (1980). Even when they develop common law or give concrete
meaning to constitutional text, judges act only in the context of
individual cases, the outcome of which cannot depend on the will of
the public. See
Barnette, 319 U. S., at 638 ("One's right to
life, liberty, and property, to free speech, a free press, freedom
of worship and assembly, and other fundamental rights may not be
submitted to vote; they depend on the outcome of no
elections.").
Thus, the rationale underlying unconstrained speech in elections
for political office-that representative government depends on the
public's ability to choose agents who will act at its behest-does
not carryover to campaigns for the bench. As to persons aiming to
occupy the seat of judgment, the Court's unrelenting reliance on
decisions involving contests for legislative and executive posts is
manifestly out of place.
E. g., ante, at 781-782 (quoting
Wood v.
Georgia,
807
370 U. S. 375,
395 (1962)
("The role that elected officials play in our
society makes it all the more imperative that they be allowed
freely to express themselves on matters of current public
importance." (Emphasis added.))). See O'Neil, The Canons in the
Courts: Recent First Amendment Rulings, 35 Ind. L. Rev. 701, 717
(2002) (reliance on cases involving nonjudicial campaigns,
particularly
Brown v.
Hartlage, is "grievously
misplaced"; "[h]ow any thoughtful judge could derive from that
ruling any possible guidance for cases that involve judicial
campaign speech seems baffling"). In view of the magisterial role
judges must fill in a system of justice, a role that removes them
from the partisan fray, States may limit judicial campaign speech
by measures impermissible in elections for political office. See
Buckley v.
Illinois Judicial Inquiry Bd., 997 F.2d
224, 228
(CA71993) ("Mode of appointment is only one
factor that enables distinctions to be made among different kinds
of public official. Judges remain different from legislators and
executive officials, even when all are elected, in ways that bear
on the strength of the state's interest in restricting their
freedom of speech.").
The Court sees in this conclusion, and in the Announce Clause
that embraces it, "an obvious tension,"
ante, at 787:
The Minnesota electorate is permitted to select its judges by
popular vote, but is not provided information on "subjects of
interest to the voters,"
ibid.-in particular, the voters are
not told how the candidate would decide controversial cases or
issues if elected. This supposed tension, however, rests on the
false premise that by departing from the federal model with respect
to who
chooses judges, Minnesota necessarily departed from
the federal position on the
criteria relevant to the
exercise of that choice.1
1 In the context of the federal system, how a prospective
nominee for the bench would resolve particular contentious issues
would certainly be "of interest" to the President and the Senate in
the exercise of their respective nomination and confirmation
powers, just as information of that type would "interest" a
Minnesota voter. But in accord with a longstand-
808
The Minnesota Supreme Court thought otherwise:
"The methods by which the federal system and other states
initially select and then elect or retain judges are varied, yet
the explicit or implicit goal of the constitutional provisions and
enabling legislation is the same: to create and maintain an
independent judiciary as free from political, economic and social
pressure as possible so judges can decide cases without those
influences." Peterson, 490 N. W. 2d, at 420.
Nothing in the Court's opinion convincingly explains why
Minnesota may not pursue that goal in the manner it did.
Minnesota did not choose a judicial selection system with all
the trappings of legislative and executive races. While providing
for public participation, it tailored judicial selection to fit the
character of third branch office holding. See
id., at 425
(Minnesota's system "keep[s] the ultimate choice with the voters
while, at the same time, recognizing the unique independent nature
of the judicial function."). The balance the State sought to
achieve-allowing the people to elect judges, but safeguarding the
process so that the integrity of the judiciary would not be
compromised-should en-
ing norm, every Member of this Court declined to furnish such
information to the Senate, and presumably to the President as well.
See Brief for Respondents 17-42 (collecting statements at Senate
confirmation hearings). Surely the Court perceives no tension here;
the line each of us drew in response to preconfirmation
questioning, the Court would no doubt agree, is crucial to the
health of the Federal Judiciary. But by the Court's reasoning, the
reticence of prospective and current federal judicial nominees
dishonors Article II, for it deprives the President and the Senate
of information that might aid or advance the decision to nominate
or confirm. The point is not, of course, that this "practice of
voluntarily demurring" by itself "establish[es] the legitimacy of
legal compulsion to demur,"
ante, at 783-784, n. 11
(emphasis deleted). The federal norm simply illustrates that,
contrary to the Court's suggestion, there is nothing inherently
incongruous in depriving those charged with choosing judges of
certain information they might desire during the selection
process.
809
counter no First Amendment shoal. See generally O'Neil,
supra, at 715-723.
II
Proper resolution of this case requires correction of the
Court's distorted construction of the provision before us for
review. According to the Court, 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." Ante, at 773.
In two key respects, that construction misrepresents the meaning of
the Announce Clause as interpreted by the Eighth Circuit and
embraced by the Minnesota Supreme Court,
In re Code of Judicial
Conduct, 639 N. W. 2d 55 (2002), which has the final word on
this matter, see
Hortonville Joint School Dist. No. 1 v.
Hortonville Ed. Assn., 426 U. S. 482, 488 (1976)
("We are, of course, bound to accept the interpretation of [the
State's] law by the highest court of the State.").
First and most important, the Court ignores a cruciallimiting
construction placed on the Announce Clause by the courts below. The
provision does not bar a candidate from generally "stating [her]
views" on legal questions,
ante, at 773; it prevents her
from "publicly making known how [she] would
decide" disputed
issues, 247 F. 3d, at 881-882 (emphasis added). That limitation
places beyond the scope of the Announce Clause a wide range of
comments that may be highly informative to voters. Consistent with
the Eighth Circuit's construction, such comments may include, for
example, statements of historical fact ("As a prosecutor, I
obtained 15 drunk driving convictions"); qualified statements
("Judges should use
sparingly their discretion to grant
lenient sentences to drunk drivers"); and statements framed
810
at a sufficient level of generality ("Drunk drivers are a threat
to the safety of every driver"). What remains within the Announce
Clause is the category of statements that essentially commit the
candidate to a position on a specific issue, such as "I think all
drunk drivers should receive the maximum sentence permitted by
law." See Tr. of Oral Arg. 45 (candidate may not say" 'I'm going to
decide this particular issue this way in the future' ").
Second, the Court misportrays the scope of the Clause as applied
to a candidate's discussion of past decisions. Citing an apparent
concession by respondents at argument,
id., at 33-34, the
Court concludes that "statements critical of past judicial
decisions are not permissible if the candidate also states that he
is against
stare decisis," ante, at 772 (emphasis deleted).
That conclusion, however, draws no force from the meaning
attributed to the Announce Clause by the Eighth Circuit. In line
with the Minnesota Board on Judicial Standards, the Court of
Appeals stated without qualification that the Clause "does not
prohibit candidates from discussing appellate court decisions." 247
F. 3d, at 882 (citing Minn. Bd. on Judicial Standards, Informal
Opinion, Oct. 10, 1990, App. 55 ("In all election contests, a
candidate for judicial office may discuss decisions and opinions of
the Appellate courts.")). The Eighth Circuit's controlling
construction should not be modified by respondents' on the spot
answers to fast-paced hypothetical questions at oral argument.
Moose Lodge No. 107 v.
Irvis, 407 U. S. 163, 170 (1972)
("We are loath to attach conclusive weight to the relatively
spontaneous responses of counsel to equally spontaneous questioning
from the Court during oral argument.").
The Announce Clause is thus more tightly bounded, and campaigns
conducted under that provision more robust, than the Court
acknowledges. Judicial candidates in Minnesota may not only convey
general information about themselves, see
ante, at 774, they
may also describe their conception of the role of a judge and their
views on a wide range of sub-
811
jects of interest to the voters. See App. 97-103; Brief for
Minnesota State Bar Association as
Amicus Curiae 22-23
(e. g., the criteria for deciding whether to depart from
sentencing guidelines, the remedies for racial and gender bias, and
the balance between "free speech rights [and] the need to control
[hate crimes]" (internal quotation marks omitted)). Further, they
may discuss, criticize, or defend past decisions of interest to
voters. What candidates may not do-simply or with sophistication-is
remove themselves from the constraints characteristic of the
judicial office and declare how they would decide an issue, without
regard to the particular context in which it is presented,
sans briefs, oral argument, and, as to an appellate bench,
the benefit of one's colleagues' analyses. Properly construed, the
Announce Clause prohibits only a discrete subcategory of the
statements the Court's misinterpretation encompasses.
The Court's characterization of the Announce Clause as
"election-nullifying,"
ante, at 782, "plac[ing] most
subjects of interest to the voters off limits,"
ante, at
787, is further belied by the facts of this case. In his 1996 bid
for office, petitioner Gregory Wersal distributed literature
sharply criticizing three Minnesota Supreme Court decisions. Of the
court's holding in the first case-that certain unrecorded
confessions must be suppressed-Wersal asked, "Should we conclude
that because the Supreme Court does not trust police, it allows
confessed criminals to go free?" App. 37. Of the second case,
invalidating a state welfare law, Wersal stated: "The Court should
have deferred to the Legislature. It's the Legislature which should
set our spending policies."
Ibid. And of the third case, a
decision involving abortion rights, Wersal charged that the court's
holding was "directly contrary to the opinion of the U. S. Supreme
Court," "unprecedented," and a "pro-abortion stance."
Id.,
at 38.
When a complaint was filed against Wersal on the basis of those
statements,
id., at 12-15, the Lawyers Professional
Responsibility Board concluded that no discipline was war-
812
ranted, in part because it thought the disputed campaign
materials did not violate the Announce Clause,
id., at
20-21. And when, at the outset of his 1998 campaign, Wersal sought
to avoid the possibility of sanction for future statements, he
pursued the option, available to all Minnesota judicial candidates,
Tr. of Oral Arg. 12-13, of requesting an advisory opinion
concerning the application of the Announce Clause. App. 24-26. In
response to that request, the Board indicated that it did not
anticipate any adverse action against him.
Id., at 31-33.2
Wersal has thus never been sanctioned under the Announce Clause for
any campaign statement he made. On the facts before us, in sum, the
Announce Clause has hardly stifled the robust communication of
ideas and views from judicial candidate to voter.
III
Even as it exaggerates the reach of the Announce Clause, the
Court ignores the significance of that provision to the integrated
system of judicial campaign regulation Minnesota has developed.
Coupled with the Announce Clause in Minnesota's Code of Judicial
Conduct is a provision that prohibits candidates from "mak[ing]
pledges or promises of conduct in office other than the faithful
and impartial performance of the duties of the office." Minn. Code
of Judicial Conduct, Canon 5(A)(3)(d)(i) (2002). Although the Court
is correct that this "pledges or promises" provision is not
directly at issue in this case, see
ante, at 770, the Court
errs in overlooking the interdependence of that prohibition and the
one before us. In my view, the constitutionality of the
Announce
2 In deciding not to sanction Wersal for his campaign
statements, and again in responding to his inquiry about the
application of the Announce Clause, the Board expressed "doubts
about the constitutionality of the current Minnesota Canon." App.
20;
id., at 32. Those doubts, however, concerned the meaning
of the Announce Clause before the Eighth Circuit applied, and the
Minnesota Supreme Court adopted, the limiting constructions that
now define that provision's scope.
813
Clause cannot be resolved without an examination of that
interaction in light of the interests the pledges or promises
provision serves.
A
All parties to this case agree that, whatever the validity of
the Announce Clause, the State may constitutionally prohibit
judicial candidates from pledging or promising certain results. See
Brief for Petitioners Republican Party of Minnesota et al. 36-37;
Tr. of Oral Arg. 14-16 (petitioners' acknowledgment that candidates
may be barred from making a "pledge or promise of an outcome");
Brief for Respondents 11; see also Brief for Brennan Center for
Justice et al. as
Amici Curiae 23 ("All of the parties and
amici in this case agree that judges should not make
explicit promises or commitments to decide particular cases in a
particular manner.").
The reasons for this agreement are apparent. Pledges or promises
of conduct in office, however commonplace in races for the
political branches, are inconsistent "with the judge's obligation
to decide cases in accordance with his or her role." Tr. of Oral
Arg. 16; see Brief for Petitioners Republican Party of Minnesota et
al. 36 ("[B]ecause [judges] have a duty to decide a case on the
basis of the law and facts before them, they can be prohibited, as
candidates, from making such promises."). This judicial obligation
to avoid prejudgment corresponds to the litigant's right, protected
by the Due Process Clause of the Fourteenth Amendment, to "an
impartial and disinterested tribunal in both civil and criminal
cases,"
Marshall v.
Jerrico, Inc., 446 U. S. 238, 242
(1980). The proscription against pledges or promises thus
represents an accommodation of "constitutionally protected
interests [that] lie on both sides of the legal equation."
Nixon v.
Shrink Missouri Government PAC, 528 U. S. 377, 400 (2000)
(BREYER, J., concurring). Balanced against the candidate's interest
in free expression is the litigant's "powerful and independent
constitutional interest in fair adjudicative procedure."
Marshall, 446 U. S., at 243; see
Buckley, 997 F.
2d,
814
at 227 ("Two principles are in conflict and must, to the extent
possible, be reconciled .... The roots of both principles lie deep
in our constitutional heritage.").
The impartiality guaranteed to litigants through the Due Process
Clause adheres to a core principle: "[N]o man is permitted to try
cases where he has an interest in the outcome."
In re
Murchison, 349 U.
S. 133, 136 (1955). Our cases have "jealously guarded" that
basic concept, for it "ensur[es] that no person will be deprived of
his interests in the absence of a proceeding in which he may
present his case with assurance that the arbiter is not predisposed
to find against him."
Marshall, 446 U. S., at 242.
Applying this principle in
Tumey v.
Ohio, 273 U. S. 510 (1927), we
held that due process was violated where a judge received a portion
of the fines collected from defendants whom he found guilty. Such
an arrangement, we said, gave the judge a "direct, personal,
substantial[, and] pecuniary interest" in reaching a particular
outcome and thereby denied the defendant his right to an impartial
arbiter.
Id., at 523.
Ward v.
Monroeville,
409 U. S. 57
(1972), extended
Tumey's reasoning, holding that due process
was similarly violated where fines collected from guilty defendants
constituted a large part of a village's finances, for which the
judge, who also served as the village mayor, was responsible. Even
though the mayor did not personally share in those fines, we
concluded, he "perforce occupie[d] two practically and seriously
inconsistent positions, one partisan and the other judicial." 409
U. S., at 60 (internal quotation marks omitted).
We applied the principle of
Tumey and
Ward most
recently in
Aetna Life Ins. Co. v.
Lavoie, 475 U. S. 813 (1986).
That decision invalidated a ruling of the Alabama Supreme Court
written by a justice who had a personal interest in the resolution
of a dispositive issue. The Alabama Supreme Court's ruling was
issued while the justice was pursuing a separate lawsuit in an
Alabama lower court, and its outcome "had the clear and immediate
effect of enhancing both the legal status
815
and the settlement value" of that separate suit.
Id., at
824. As in
Ward and
Tumey, we held, the justice
therefore had an interest in the outcome of the decision that
unsuited him to participate in the judgment. 475 U. S., at 824. It
mattered not whether the justice was actually influenced by this
interest; "[t]he Due Process Clause," we observed, "may sometimes
bar trial by judges who have no actual bias and who would do their
very best to weigh the scales of justice equally between contending
parties."
Id., at 825 (internal quotation marks
omitted).
These cases establish three propositions important to this
dispute. First, a litigant is deprived of due process where the
judge who hears his case has a "direct, personal, substantial, and
pecuniary" interest in ruling against him.
Id., at 824
(internal quotation marks and alteration omitted). Second, this
interest need not be as direct as it was in
Tumey, where the
judge was essentially compensated for each conviction he obtained;
the interest may stem, as in
Ward, from the judge's
knowledge that his success and tenure in office depend on certain
outcomes. "[T]he test," we have said, "is whether the ... situation
is one 'which would offer a possible temptation to the average man
as a judge [that] might lead him not to hold the balance nice,
clear and true.'''
Ward, 409 U. S., at 60 (quoting
Tumey, 273 U. S., at 532). And third, due process does not
require a showing that the judge is actually biased as a result of
his self-interest. Rather, our cases have "always endeavored to
prevent even the probability of unfairness."
In re
Murchison, 349 U. S., at 136. "[T]he requirement of due process
of law in judicial procedure is not satisfied by the argument that
men of the highest honor and the greatest self-sacrifice could
carry it on without danger of injustice."
Tumey, 273 U. S.,
at 532.3
3 To avoid the import of our due process decisions, the Court
dissects the concept of judicial "impartiality,"
ante, at
775-779, concluding that only one variant of that concept-lack of
prejudice against a
party-is secured by the Fourteenth
Amendment,
ante, at 775-777. Our Due Proc-
816
The justification for the pledges or promises prohibition
follows from these principles. When a judicial candidate promises
to rule a certain way on an issue that may later reach the courts,
the potential for due process violations is grave and manifest. If
successful in her bid for office, the judicial candidate will
become a judge, and in that capacity she will be under pressure to
resist the pleas of litigants who advance positions contrary to her
pledges on the campaign trail. If the judge fails to honor her
campaign promises, she will not only face abandonment by supporters
of her professed views; she will also "ris[k] being assailed as a
dissembler," 247 F. 3d, at 878, willing to say one thing to win an
election and to do the opposite once in office.
A judge in this position therefore may be thought to have a
"direct, personal, substantial, [and] pecuniary interest" in ruling
against certain litigants,
Tumey, 273 U. S., at 523, for she
may be voted off the bench and thereby lose her salary and
emoluments unless she honors the pledge that secured her election.
See Shepard, Campaign Speech: Restraint and Liberty in Judicial
Ethics, 9 Geo. J. Legal Ethics 1059, 10831092 (1996); see
id., at 1088 ("[A] campaign promise [may be characterized
as] a bribe offered to voters, paid with rulings consistent with
that promise, in return for continued employ-
ess Clause cases do not focus solely on bias against a
particular party, but rather inquire more broadly into whether the
surrounding circumstances and incentives compromise the judge's
ability faithfully to discharge her assigned duties. See
supra, at 815. To be sure, due process violations may arise
where a judge has been so personally "enmeshed in matters"
concerning one party that he is biased against him. See
Johnson v.
Mississippi, 403 U. S. 212, 215 (1971)
(per curiam) (judge had been "a defendant in one of
petitioner's civil rights suits and a losing party at that"). They
may also arise, however, not because of any predisposition toward a
party, but rather because of the judge's personal interest in
resolving an issue a certain way. See
Aetna Life Ins. Co. v.
Lavoie, 475 U. S. 813 (1986). Due process will not
countenance the latter situation, even though the self-interested
judge "will apply the law to [the losing party] in the same way he
[would apply] it to any other party" advancing the same position,
ante, at 776.
817
ment as a judge."); see also The Federalist No. 79, p. 472
(C. Rossiter ed. 1961) ("In the general course of human
nature, a power over a man's subsistence amounts to a power over
his will." (emphasis deleted)).
Given this grave danger to litigants from judicial campaign
promises, States are justified in barring expression of such
commitments, for they typify the "situatio[n] ... in which
experience teaches that the probability of actual bias on the part
of the judge ... is too high to be constitutionally tolerable."
Withrow v.
Larkin, 421 U. S. 35, 47 (1975).
By removing this source of "possible temptation" for a judge to
rule on the basis of self-interest,
Tumey, 273 U. S., at
532, the pledges or promises prohibition furthers the State's
"compellin[g] interest in maintaining a judiciary fully capable of
performing" its appointed task,
Gregory v.
Ashcroft,
501 U. S. 452, 472 (1991): "judging [each] particular
controversy fairly on the basis of its own circumstances,"
United States v.
Morgan, 313 U. S. 409, 421
(1941). See O'Neil, 35 Ind. L. Rev., at 723 ("What is at stake here
is no less than the promise of fairness, impartiality, and
ultimately of due process for those whose lives and fortunes depend
upon judges being selected by means that are not fully subject to
the vagaries of American politics.").
In addition to protecting litigants' due process rights, the
parties in this case further agree, the pledges or promises clause
advances another compelling state interest: preserving the public's
confidence in the integrity and impartiality of its judiciary. See
Tr. of Oral Arg. 16 (petitioners' statement that pledges or
promises properly fosters "public perception of the impartiality of
the judiciary"). See
Cox v.
Louisiana, 379 U. S. 559, 565 (1965)
("A State may ... properly protect the judicial process from being
misjudged in the minds of the public.");
In re Murchison,
349 U. S., at 136 ("[T]o perform its high function in the best
way[,] 'justice must satisfy the appearance of justice.'" (quoting
Offutt v.
United States, 348 U. S. 11, 14 (1954))).
Because courts con-
818
trol neither the purse nor the sword, their authority ultimately
rests on public faith in those who don the robe. See
Mistretta v.
United States, 488 U. S. 361, 407 (1989)
("The legitimacy of the Judicial Branch ultimately depends on its
reputation for impartiality and nonpartisanship."). As the
Minnesota Supreme Court has recognized, all legal
systems-regardless of their method of judicial selection-"can
function only so long as the public, having confidence in the
integrity of its judges, accepts and abides by judicial decisions."
Complaint Concerning Winton, 350 N. W. 2d 337, 340
(1984).
Prohibiting a judicial candidate from pledging or promising
certain results if elected directly promotes the State's interest
in preserving public faith in the bench. When a candidate makes
such a promise during a campaign, the public will no doubt perceive
that she is doing so in the hope of garnering votes. And the public
will in turn likely conclude that when the candidate decides an
issue in accord with that promise, she does so at least in part to
discharge her undertaking to the voters in the previous election
and to prevent voter abandonment in the next. The perception of
that unseemly
quid pro quo-a judicial candidate's promises
on issues in return for the electorate's votes at the
polls-inevitably diminishes the public's faith in the ability of
judges to administer the law without regard to personal or
political self-interest.4 Then-JusTICE REHNQUIST'S observations
4 The author of the Court's opinion declined on precisely these
grounds to tell the Senate whether he would overrule a particular
case:
"Let us assume that I have people arguing before me to do it or
not to do it. I think it is quite a thing to be arguing to somebody
who you know has made a representation in the course of his
confirmation hearings, and that is, by way of condition to his
being confirmed, that he will do this or do that. I think I would
be in a very bad position to adjudicate the case without being
accused of having a less than impartial view of the matter." 13 R.
Mersky & J. Jacobstein, The Supreme Court of the United
States:
Hearings and Reports on Successful and Unsuccessful Nominations
of Supreme Court Justices by the Senate Judiciary Committee,
1916-1986,
819
about the federal system apply with equal if not greater force
in the context of Minnesota's elective judiciary: Regarding the
appearance of judicial integrity,
"[one must] distinguish quite sharply between a public statement
made prior to nomination for the bench, on the one hand, and a
public statement made by a nominee to the bench. For the latter to
express any but the most general observation about the law would
suggest that, in order to obtain favorable consideration of his
nomination, he deliberately was announcing in advance, without
benefit of judicial oath, briefs, or argument, how he would decide
a particular question that might come before him as a judge."
Laird v. Tatum, 409 U. S. 824, 836, n. 5
(1972) (memorandum opinion).
B
The constitutionality of the pledges or promises clause is thus
amply supported; the provision not only advances due process of law
for litigants in Minnesota courts, it also reinforces the authority
of the Minnesota judiciary by promoting public confidence in the
State's judges. The Announce Clause, however, is equally vital to
achieving these compelling ends, for without it, the pledges or
promises provision would be feeble, an arid form, a matter of no
real importance.
Uncoupled from the Announce Clause, the ban on pledges or
promises is easily circumvented. By prefacing a campaign commitment
with the caveat, "although I cannot promise anything," or by simply
avoiding the language of promises or pledges altogether, a
candidate could declare with impunity how she would decide specific
issues. Semantic sanitizing of the candidate's commitment would
not, however, diminish its pernicious effects on actual and
perceived judicial impartiality. To use the Court's example, a
candidate
p. 131 (1989) (hearings before the Senate Judiciary Committee on
the nomination of then-Judge Scalia).
820
who campaigns by saying, "If elected, I will vote to uphold the
legislature's power to prohibit same-sex marriages,"
ante,
at 780, will feel scarcely more pressure to honor that statement
than the candidate who stands behind a podium and tells a throng of
cheering supporters: "I think it is constitutional for the
legislature to prohibit same-sex marriages,"
ante, at 779.
Made during a campaign, both statements contemplate a
quid pro
quo between candidate and voter. Both effectively "bind [the
candidate] to maintain that position after election."
Ante,
at 770. And both convey the impression of a candidate prejudging an
issue to win votes. Contrary to the Court's assertion, the
"nonpromissory" statement averts none of the dangers posed by the
"promissory" one. See
ante, at 780-781 (emphasis
deleted).
By targeting statements that do not technically constitute
pledges or promises but nevertheless "publicly mak[e] known how
[the candidate] would decide" legal issues, 247 F. 3d, at 881-882,
the Announce Clause prevents this end run around the letter and
spirit of its companion provision.5 No less than the pledges or
promises clause itself, the Announce
5 In the absence of the Announce Clause, other components of the
Minnesota Code of Judicial Conduct designed to maintain the
nonpartisan character of the State's judicial elections would
similarly unravel. A candidate would have no need to "attend
political gatherings" or "make speeches on behalf of a political
organization," Minn. Code of Judical Conduct, Canon 5(A)(1)(c), (d)
(2002), for she could simply state her views elsewhere, counting on
her supporters to carry those views to the party faithful. And
although candidates would remain barred from "seek[ing],
accept[ing,] or us[ing] endorsements from a political
organization," Canon 5(A)(1)(d), parties might well provide such
endorsements unsolicited upon hearing candidates' views on specific
issues. Cf.
ante, at 770 (Minnesota Republican Party sought
to learn Wersal's views so party could support or oppose his
candidacy). Those unsolicited endorsements, in turn, would render
ineffective the prohibition against candidates "identify[ing]
themselves as members of a political organization," Canon
5(A)(1)(a). "Indeed, it is not too much to say that the entire
fabric of Minnesota's non[p]artisan elections hangs by the Announce
clause thread." Brief for Minnesota State Bar Association as
Amicus Curiae 20.
821
Clause is an indispensable part of Minnesota's effort to
maintain the health of its judiciary, and is therefore
constitutional for the same reasons.
***
This Court has recognized in the past, as JUSTICE O'CONNOR does
today, see
ante, at 788-790 (concurring opinion), a
"fundamental tension between the ideal character of the judicial
office and the real world of electoral politics,"
Chisom,
501 U. S., at 400. We have no warrant to resolve that tension,
however, by forcing States to choose one pole or the other. Judges
are not politicians, and the First Amendment does not require that
they be treated as politicians simply because they are chosen by
popular vote. Nor does the First Amendment command States that wish
to promote the integrity of their judges in fact and appearance to
abandon systems of judicial selection that the people, in the
exercise of their sovereign prerogatives, have devised.
For more than three-quarters of a century, States like Minnesota
have endeavored, through experiment tested by experience, to
balance the constitutional interests in judicial integrity and free
expression within the unique setting of an elected judiciary. P.
McFadden, Electing Justice: The Law and Ethics of Judicial Election
Campaigns 86 (1990); Brief for the Conference of Chief Justices as
Amicus Curiae 5. The Announce Clause, borne of this long
effort, "comes to this Court bearing a weighty title of respect,"
Teamsters v.
Hanke, 339 U. S. 470, 475
(1950). I would uphold it as an essential component in Minnesota's
accommodation of the complex and competing concerns in this
sensitive area. Accordingly, I would affirm the judgment of the
Court of Appeals for the Eighth Circuit.
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