Supreme Court to decide if states can restrict judicial candidates’ speech

Tuesday, December 4, 2001

The Supreme Court agreed yesterday to step into a thorny First Amendment debate it has never explored before: whether states may restrict what judicial candidates say on the campaign trail.

The issue is at the center of the debate over reforming judicial elections, which are used in roughly two-thirds of the states to pick some or all of their judges. As the elections become more costly and raucous — complete with special-interest money and television advertising — concern is growing over the independence of the judiciary.

But efforts by states to regulate judicial campaigns have run into the same First Amendment problems that campaign reforms have faced in other contexts: whether the free-speech rights of candidates and their supporters are being violated. Judicial candidates nationwide have challenged campaign restrictions on First Amendment grounds with mixed success.

The Supreme Court granted review in one of those cases yesterday: Republican Party of Minnesota v. Kelly, a state party challenge to the Minnesota Code of Judicial Conduct. That code bars judicial candidates from announcing their views on disputed legal issues.

For the Supreme Court, the case will juxtapose two of its most deeply held values: First Amendment protection for core political speech on one hand, and the integrity, fairness and dignity of the judicial process on the other.

All the states in which judges stand for election or retention have some form of restriction on what judicial candidates can say or promise before elections, says Steven Lubet, a Northwestern University School of Law professor. Some of the restrictions date to the 1920s.

“This case could cause a sea change in the way judicial elections are conducted in every one of those states,” Lubet said yesterday.

The issue may have special significance for the justices themselves, all of whom, to varying degrees, declined to state their views on controversial issues at their own Senate confirmation hearings. Justice Antonin Scalia in 1986 went so far as to decline to offer his opinion of Marbury v. Madison, the bedrock 1803 decision that established the power of the court to review acts of Congress.

But for the justices, their decision not to state their views was their own — not a matter of law. In the context of elections, the Supreme Court has been highly skeptical of laws that restrict the speech of candidates, even when the laws are aimed at reforming elections. The court generally views the expression that occurs during election campaigns — whether by candidates, parties or the press — to be at the core of what the First Amendment was intended to protect.

This conflict between judicial election reform and the First Amendment was the subject of a major symposium called by state chief justices last month in Chicago. At the meeting, noted First Amendment advocates differed sharply.

Former University of Virginia President Robert O’Neil, head of the Thomas Jefferson Center for the Protection of Free Expression, argued: “Courts are profoundly different from other institutions in various ways that warrant curbing campaign speech to a degree that is neither necessary nor acceptable for other branches.”

Erwin Chemerinsky, a University of Southern California Law School professor, countered that “if states are going to make judges and judicial candidates into politicians by having them run for office or retention, then these individuals should have the same free-speech rights as all others standing for election.”

The case before the court began in 1997 when lawyer Gregory Wersal ran in a nonpartisan election for a seat on the Minnesota Supreme Court. He announced he was a “strict constructionist” and courted the endorsement of the Republican Party. Wersal asked the state Office of Lawyer Professional Responsibility whether his actions would run afoul of the state code of judicial conduct. The office indicated they would, and Wersal and the Republican Party sued.

The 8th U.S. Circuit Court of Appeals upheld the limitations, ruling they were narrowly tailored measures that further the state’s compelling interest to “guarantee the independence of the Minnesota judiciary” from “political, economic and social pressure.”

The candidate and the party appealed to the Supreme Court. In a brief before the Supreme Court, Minnesota defended the restriction by saying “litigants have a right and expectation that a judge will decide cases based upon the law and facts of the case rather than based upon statements made during a campaign.”

In its order granting review, the high court said it would consider only the first question raised — the challenge to the rule barring candidates from announcing their views on “disputed legal or political issues.” The appeals panel in its ruling had construed that provision narrowly, to bar discussion only of matters likely to come before the candidate if elected.

Other restrictions, barring candidates from seeking party endorsements or attending party events, will not be reviewed by the Supreme Court and will stand. Since these party-related issues are no longer part of the case, it is unclear whether the Republican Party will remain as the main plaintiff.

The case will be argued in spring 2002, with a decision before the end of the term in late June or early July.

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