SUPREME COURT OF THE UNITED STATES
SCALIA,
J., Opinion of the Court
01-521
Republican
Party of Minnesota v. White
CERTIORARI
TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT
01-521 Argued: March 26, 2002 --- Decided: June 27, 2002
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), 11(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 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,[n1] 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.[n2]
Shortly thereafter, Wersal filed this lawsuit in Federal District
Court against respondents,[n3] seeking, inter alia, a 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.
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.
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 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.[n4] 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.” 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.[n5]
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
announce 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.[n6] 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 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. Any party taking that position is just as likely to
lose. The judge is applying the law (as he sees it)
evenhandedly.[n7]
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 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 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 repeatedly (until
litigation is pending) after he is elected. As a means of pursuing
the objective of open-mindedness 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 5-6. 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 na ;ve 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 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).[n8]
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 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 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 14-15, 18-19. 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 14-15 (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. It is not difficult to
understand how one with these views would approve the
election-nullifying effect of the announce clause.[n9] 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 19-20.
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 1-6, we
neither assert nor imply that the
First Amendment requires
campaigns for judicial office to sound the same as those for
legislative office.[n10] 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 16, 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.[n11]
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 4. 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.[n12]
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
long-established” 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; 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
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,[n13] and 1 prohibits only the discussion of “pending
litigation.”[n14] 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,
205-206 (1992) (crediting tradition of prohibiting speech around
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.[n15]) 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 support 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,
424-425 (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.
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 4,
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.
4. Justice
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 8 (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.
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 Advisory
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.
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”).
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 5. We do
not disagree. Some of the speech prohibited by the announce clause
may well exhibit a bias against parties–including Justice
Stevens’ example of an election speech stressing the
candidate’s unbroken record of affirming convictions for
rape, ibid. That is why we are careful to say that the announce
clause is “barely tailored to serve that interest,”
supra, at 10 (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.
8. We
do not agree with Justice Stevens’ 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 of fitness
for office.” Post, at 3 (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.
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 9-10. 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 5-7. This
predicament hardly reflects “the robust communication of
ideas and views from judicial candidate to voter.” Post, at
10.
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 5-6, n. 1,
17, n. 4. That the practice 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 17, 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 3
(“[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, post, at 3 (“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 3, n. 2. Even
if the policy making 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, post, at 3, n. 2, 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-
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).
13. Idaho
Code Judicial Conduct, Canon 7 (2001); Mich. Code Judicial Conduct,
Canon 7 (2002); N. C. Code Judicial Conduct, Canon 7 (2001);
Ore. Code 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).
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).