Supreme Court Dispatches

Wait Wait … Don’t Tell Me!

Should judicial candidates keep their opinions to themselves?

You say you want the truth about what the judge deciding your case really thinks? About her biases and ideologies? Her agendas and affiliations? The truth? You can’t handle the truth. Today’s oral argument, in Republican Party of Minnesota v. Kelly (Adobe Acrobat required), is a First Amendment challenge to Canon 5 of Minnesota’s judicial rules, but also, by extension, to the the rules promulgated by the 38 states that elect their judges. Using slightly different language, each of those states bars judicial candidates from discussing politics and ideology in front of innocent voters. In effect, today’s case is about a judge’s right to announce to the public, “Dammit, yes I’m biased as hell, so elect me.” More profoundly, Kelly is about whether the public has a right to be stripped of our judicial illusions, once and for all.

Canon 5 of Minnesota’s State Code of Judicial Conduct bars judicial candidates from “announc[ing] his or her views on disputed legal or political issues.” The Minnesota rule is based on the American Bar Association’s 1972 Model Code of Judicial Conduct, which was amended in 1990 to be slightly less restrictive about speech. The 1990 rule bars candidates 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.” The differences between the first rule (the “announcement” rule) and the second (the “commitment” rule) may or may not be semantic. The parties are all over the map. For what it’s worth, Minnesota takes the position that the rules are the same. And Minnesota has been restricting judicial speech since the 1950s.

Gregory Wersal ran for the Minnesota Supreme Court in 1996, and again in 1998, and he did so by stumping around all sorts of Republican Party functions, criticizing the existing state Supreme Court’s decisions on abortion, crime, and welfare, promising to be a strict constructionist, deriding the current court as judicial activists, and generally doing everything one man could do to strip away any illusions one might have regarding judicial neutrality. When it became clear that he was running afoul of Canon 5, Wersal challenged it as a violation of his right to free speech under the First Amendment. The federal district court upheld the ethical rule, and the 8th Circuit Court of Appeals agreed. Sure the code abridged judicial speech, ruled the court, but it’s necessary to ensure the state interest in judicial independence and impartiality. This is a colossal jurisprudential whisper that essentially amounts to: “Not in front of the children.”

Wersal and the Minnesota Republican Committee disagree. They feel that a judicial election isn’t about trading lutefisk recipes and chatting about the weather. They contend that there’s no more important speech than political speech and that candidates have a right to say who they are, and voters deserve to know what they’re electing. The case is uniquely confusing because the parties each seek to keep fooling the public into believing in a neutral judiciary; they just want to use different rules to achieve it.

Even the court looks confused today. The rules are all so arbitrary that they founder trying to find some reasoned principle for which speech restrictions are OK and which are not. James Bopp represents Mr. Wersal, who, having lost two Minnesota Supreme Court election bids and two free speech trials, is not having what you’d call a great career thus far. Justice O’Connor (resplendent today on her 72nd birthday) makes an effort to find a principled distinction between the “announce” rule and the “commitment” rule. Justice Kennedy wants to know if the rule affects sitting judges differently than judicial candidates. Bopp says yes, then changes his mind. Justice Ginsburg tries to find some kind of defining principle in the distinction between judicial commentary on past cases and future ones.

Then there’s a suggestion from Chief Justice Rehnquist that there might be a distinction between discussing general legal philosophy (say, one’s feelings about the Fourth Amendment) and discussing specific cases. Justice Scalia, frustrated, correctly points out that “if this is too fuzzy for us to rule, it’s also too fuzzy for judicial candidates to know what it means.” Bopp is willing to bar judges from making “promises or pledges” to decide cases in certain ways, and Kennedy is surprised he’d go that far. Ginsburg then wonders if the only prohibited speech thus involves the words “I pledge and promise.” Well, no, says Bopp, they can’t do anything to imply that they are binding themselves to deciding cases in a fixed way. Justice Breyer thinks the limiting principle is the same one he employed at his own confirmation hearings: “I will reveal my judicial philosophy, but not how I’ll decide future cases.” Which is a colossal jurisprudential whisper that amounts to: “The children are too dumb to figure out from my judicial philosophy how I’ll decide future cases.”

O’Connor wonders how judicial candidates’ comments on cases differ from a sitting judge’s written opinions, using the example of a judge who writes in an opinion that they oppose the death penalty. “Can that judge be charged for bias?” she wonders. No, answers the chief justice, “That is not a pledge.”

Alan Gilbert argues for the Minnesota canon, and he tries to limit the ban on judicial speech to “issues likely to come before them as judges.” A judge can express a judicial philosophy and criticize past cases, but he cannot “say how he’ll decide future cases.” But he uses as an example Wersal’s promise to be a “strict constructionist.” Scalia (who knows a strict constructionist when he sees one) retorts, “What does that mean?” And hilariously calls the label “too fuzzy” and “totally imprecise.” Then the head games begin in earnest. Justice Kennedy asks whether a judicial candidate can say, “This is the worst decision since Dred Scott and a plague on our people, but I’m not telling you how I’ll vote.” And Justice Stevens wonders if he can criticize any decision so long as he insists that he doesn’t believe in stare decisis (the rule that judges are bound by prior precedent).

Scalia eventually asks if all this muzzling of judges acts as a functional “repeal” of a state’s preference for electing rather than appointing judges. “Why,” he asks, “vote for a judge who can’t even tell the electorate, by implication, what kind of judge he will be?” Finally, at the eleventh hour, Gilbert gets to the state’s real interest in this case: “What if that judge wins and the litigants come before a judge who has already announced how he’ll decide?”

Kennedy responds that the public is better off having that information in order to make a more informed decision, and he’s right, but for the wrong reason. Whether or not you appear before a judge who announced he’s biased during the election, chances are you are appearing before a judge who is biased. So isn’t it better just to know your judge’s biases well in advance? It sure would have made Bush v. Gore a whole lot easier to swallow.

Expect a decision in Kelly by summer.