Republican Party of
Minnesota v. White
___ U.S. ____ (2002)
http://supct.law.cornell.edu/supct/html/01-521.ZS.html
Vote: 5 (Kennedy, Rehnquist, Scalia, Thomas)
4
(Breyer, Ginsburg, Souter, Stevens)
Opinion of the Court: Scalia
Concurring Opinions: Kennedy, O’Connor
Dissenting Opinions: Stevens, Ginsburg
Minnesota’s State Constitution provides for the selection of
all state judges by popular election. Since 1974, those elections have been
subject to a legal restriction stating that a “candidate for a judicial office,
including an incumbent judge,” shall not “announce his or her views on disputed
legal or political issues.” This prohibition, promulgated by the Minnesota
Supreme Court and based on a 1972 canon of the American Bar Association’s (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. Lawyers who run for judicial
office also must comply with the announce clause. Those who violate it are
subject to disbarment, suspension, and probation.
In 1996, one of the petitioners in Republican Party of Minnesota v. White, 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 was filed with the Office of Lawyers Professional Responsibility, the
agency which, under the direction of the Minnesota Lawyers Professional
Responsibility Board, investigates and prosecutes ethical violations of lawyer
candidates for judicial office. The Lawyers Board dismissed the complaint, but
Wersal, fearing that further ethical complaints would jeopardize his ability to
practice law, withdrew from the election.
In 1998, Wersal ran again for the same
office. Early in this 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.
Shortly
thereafter, Wersal filed suit in a federal district court on the grounds that
the announce clause violates the First Amendment. 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 district court held that the
announce clause did not violate the First Amendment, and a U.S. Court of
Appeals affirmed.
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.
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. 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; 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.
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.
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. 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.
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. 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. . . .
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.
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. . .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. .
.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.
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. 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. (“A judge may write, lecture, teach, speak
and participate in other extra-judicial activities concerning the law. . .”; 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. . .
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 disparity is perhaps unsurprising, since the ABA, which
originated the announce clause, has long been an opponent of judicial
elections. That opposition may be well taken. . .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.
. . .
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
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.,
(1991), and the Court explains in clear and forceful terms why the Minnesota
regulatory scheme fails that test. So I join its opinion.
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. 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.
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. . .
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.
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.” 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 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.
Moreover,
contested elections generally entail campaigning. And campaigning for a
judicial post today can require substantial funds. 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 campaigning
requires judicial candidates to engage in fundraising. Yet relying on campaign
donations may leave judges feeling indebted to certain parties or interest
groups. 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.
Despite
these significant problems, 39 States currently employ some form of judicial
elections for their appellate courts, general jurisdiction trial courts, or
both. . . .
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. . . . 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
Ginsburg, with whom Justice
Stevens, Justice Souter, and Justice
Breyer join, dissenting.
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. . . .
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
representative 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,” for they “enhance the accountability of government officials to the
people whom they represent.”
Judges,
however, are not political actors. They do not sit as representatives of
particular persons, communities, or parties; they serve no faction or
constituency. 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.
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 carry over 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. 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.
The
Court sees in this conclusion, and in the Announce Clause that embraces it, “an
obvious tension”: The Minnesota electorate is permitted to select its judges by
popular vote, but is not provided information on “subjects of interest to the
voters,”--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.
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.”
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. 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 encounter no First Amendment shoal. . .
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.
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.” 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.”. . . .
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.
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. . .
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 who campaigns by saying,
“If elected, I will vote to uphold the legislature’s power to prohibit same-sex
marriages,” 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.” 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.” 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.
By targeting statements that do not
technically constitute pledges or promises but nevertheless “publicly mak[e]
known how [the candidate] would decide” legal issues, the Announce Clause
prevents this end run around the letter and spirit of its companion provision.
No less than the pledges or promises clause itself, the Announce Clause is an
indispensable part of Minnesota’s effort to maintain the health of its
judiciary, and is therefore constitutional for the same reasons.
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. . . .
By recognizing a conflict between the demands of electoral politics and the distinct characteristics of the judiciary, we 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, 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.