Michael Richard Dimino, Sr., Counter-Majoritarian Power and Judges’ Political Speech

58 Fla. L. Rev. 53 (2006) | | | |

INTRODUCTION :: Judges and judicial candidates are regularly restricted in their political speech and association by two categories of ethical canons that have only recently come under constitutional examination: those that restrict the ways judges conduct their own campaigns, and those that restrict judges’ participation in other aspects of politics, including non-judicial campaigns. The first category includes, among other prohibitions, bans on soliciting campaign contributions or making pledges, promises, or commitments of on-the-bench conduct. The second category includes restrictions on taking positions of leadership within political parties, contributing to other candidates’ campaigns, and publicly indicating support for (or opposition to) a candidate for non-judicial office. Whether any of these restrictions on political activity will survive review in future cases depends on a judicial assessment of the importance of the interests they serve-advancing judicial independence and the confidence of the public in blind justice-and the weighing of those interests against judges’ rights of free expression.

In the first case challenging a judicial-campaign restriction, Republican Party v. White, the Supreme Court held that Minnesota violated the First Amendment by forbidding a judicial candidate from “‘announc[ing] his . . . views on disputed legal or political issues.’” Though the 5-4 split in White was a familiar one, with the five most conservative Justices in the majority and the four most liberal dissenting, the split was unusual for a free- speech case, suggesting that the Justices were motivated by something other than their solicitude for the place of free expression in American society.


This Article argues that rather than reflecting differing positions on the value of free speech, the divide between the majority and dissenting opinions in White reflects vastly different approaches to the counter-majoritarian difficulty, and to the Canons of judicial ethics that enable counter-majoritarian decisionmaking by permitting judges the freedom to decide cases irrespective of public pressure. The dissenters understood judicial independence as essential to upholding the rule of law, believing that “[e]ven 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.” Such independence, however, insulates not only the judges who always faithfully seek to apply the law, but also those judges who use their unaccountability to shape the law in favor of their own preferred policies. The White majority, apparently suspicious of that potential outcome, sought to make the counter-majoritarian difficulty less difficult by making the judiciary less counter-majoritarian.

Part II begins by analyzing the arguments in White and other judicial free speech cases, arguing that pro-speech decisions are supported by two different grounds: promoting democratic self-governance and encouraging individual self- expression. Anti-speech decisions tend to focus on concerns of institutional legitimacy. Some decisions supporting free speech in judicial elections have looked at the policymaking capability of courts and have reasoned that the public is entitled to affect the course of judicially-made policy in states where judges are elected. Other decisions may be considered more straightforward applications of traditional First Amendment principles under an individual-rights paradigm (as opposed to an approach under which the courts broadly oversee the democratic process), reasoning that because the speech at issue is political, and the content- based law restriction is designed to discourage political speech, the regulation must fail.

Part III examines the Justices’ voting patterns and indicates that the votes in White are unusual in light of the Justices’ past behavior in free-speech cases. An evaluation of other potential explanations for the Justices’ votes in White suggests that their views on criminal procedure and judicial power may color their views on judicial free speech.

Part IV discusses the restrictions states place on the political activity of their judges, as to the ways elected judges may conduct their own campaigns and the ways judges may involve themselves in political parties or other candidates’ campaigns. Part IV analyzes the interests supporting the restrictions placed on free expression by each type of regulation. While restrictions on the conduct of judicial campaigns are largely in place-and criticized-because the writers and enforcers of the Canons do not want the judiciary influenced by public opinion, restrictions on judicial participation in non-judicial campaigns promote the appearance of an apolitical judiciary, so as to increase the courts’ legitimacy and power. However, despite this apparent difference, both types of restrictions maximize the courts’ capacity to issue counter-majoritarian decisions by: (1) discouraging the public from seeing law as a series of policy choices and (2) limiting the chance of electoral defeat as a reprimand for judges who make choices with which the voters disagree. White struck down the announce clause because it facilitated counter-majoritarian judicial policy making, which the Justices in the White majority found troublesome. The dissenters, who were far more accepting of independent judicial policymaking, voted to uphold the clause for the same reason.

Part V explores the implications, in terms of both White’s realism and the hypothesized link between counter-majoritarian power and judicial free speech, for cases challenging restrictions on judicial involvement in non-judicial politics. White reveals four potential paths the Court could take as new cases are argued and new Justices are appointed, ranging from Justice Kennedy’s protection of “unabridged speech [a]s the foundation of political freedom,” to Justice Scalia’s protection of speech to promote democratic self-governance, to Justice Stevens’s and Justice Ginsburg’s refusal to protect speech when it would impair judicial power. The future of judicial free speech depends on which of these paths the members of the Court choose to pursue.

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