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A Recent Supreme Court Opinion On States' Ability To Regulate Judicial Candidates' Speech May Prove The Cynics Wrong

Tuesday, Jul. 09, 2002

On June 27, the Supreme Court issued its 5-4 decision in Republican Party of Minnesota v. White. There, pursuant to the First Amendment, the Court struck down restrictions that the Minnesota Supreme Court had imposed limiting the ability of candidates for elected state judgeships to voice their views on disputed legal and political issues.

In White, a conservative majority held, in effect, that a state does not have unlimited discretion to decide the way elections within that state will be held. Instead, the Bill of Rights stringently controls how it can do so.

The decision was dwarfed in the press by several other extremely significant end-of-Term opinions on school vouchers and the death penalty. However, it is significant and, indeed, stunning in its own right.

Why? In part, because the Justices' respective opinions in White suggest that their opinions in Bush v. Gore may have been principled and heartfelt - not opportunistic and political, as many have claimed. And that, in turn, suggests that the Court's action in deciding Bush v. Gore - and thus resolving the 2002 election - may have been far more legitimate and properly judicial than is commonly thought.

In an earlier column posted shortly after the oral argument in White, I discussed at length the merits of the different arguments raised for and against the Minnesota restrictions. In this column, I will focus on the Justices' respective positions in White, pointing out how those positions are, in the main, strikingly similar to those they adopted in Bush v. Gore.

After Bush v. Gore was decided, of course, many commentators became a lot more cynical about the Court. It would not be an overstatement to say even that for some, their faith was shaken.

The conservative Justices, they argued, who had always claimed to be pro-states' rights, had suddenly reversed themselves. They had ignored Florida's rights to determine its own results in the 2000 Presidential election through its own judiciary and legislature, so they could support the Republican Presidential candidate.

Conversely, the cynics said, the liberal Justices, who had always trumpeted the importance of enforcing constitutional guarantees such as Equal Protection rights against the States, also opportunistically reversed themselves. They suddenly became states' rights enthusiasts when it benefited the Democratic Presidential candidate, and uncharacteristically insisted that the Court should leave Florida alone.

So therefore Bush v. Gore was all about politics, not principle, the cynics said. But were they right?

Not necessarily - for the Court broke down exactly the same way in the recent White decision. The majority of Kennedy, O'Connor, Rehnquist, Scalia, and Thomas held. So did the minority of Breyer, Ginsburg, Souter, and Stevens.

Recall that in Bush v. Gore, the same 5-4 conservative majority ruled, just as it did in White, that a state (there, Florida) did not have carte blanche to decide how elections in that state would be held. Instead, the Bill of Rights (there, the Equal Protection Clause) restricted how elections had to occur. In short, the Justices held the very same positions in 2000 that they have this year. They have been consistent and thus, arguably, principled both times.

That casts the common critique of Bush v. Gore severely into doubt. Did the Court really decide the election, casting policy-minded votes just as the voters who went to the ballot box did? Or did the Justices simply decide to adhere to carefully-considered views of how much deference a state deserves to run its own elections? The White decision suggests, perhaps surprisingly, that the answer may be the latter, since the Justices voiced the very same views two years down the road, as well.

If Bush v. Gore was indeed a principled, not a political, decision, that is very significant. It means, for one thing, that the Court's legitimacy in our system enjoys a far stronger basis - for the claim that the Justices, in Bush v. Gore, were acting more like electors than jurists may be entirely inaccurate. White indicates that, instead, the Justices may simply have been adhering to the same principled beliefs in Bush v. Gore that they generally apply, and thus not exceeding their proper constitutional role.

Granted, White, like Bush v. Gore, benefited a Republican candidate, Gregory Wersal, who won his challenge to the Minnesota restrictions. Thus, one might argue that rather being principled, the conservative majority in White was only favoring Republicans once again. But that would be shortsighted.

Justice O'Connor's Positions Are Consistent From Bush v. Gore to White

Justice O'Connor, a conservative justice and once herself an Arizona legislator and judge, is famous for her endorsement of states' rights. But in her White concurrence, O'Connor criticizes all 39 States that employ elections in their judicial selection process.

"I join the opinion of the Court but write separately to express my concerns about judicial elections generally," she announces at the start of her concurrence. She concludes that "the very practice of electing judges undermines" a state's compelling interest in an "impartial judiciary."

It is therefore the federal model of judging - which includes nomination, confirmation, and life tenure - and not the model of the States that Justice O'Connor clearly prefers. Those who have thought of her as simply a states' rights adherent will accordingly have to rethink their position.

Indeed, Justice O'Connor's criticism of the States in White is so harsh that she elicits what can only be seen as a rebuke from Justice Kennedy in his White concurrence. Although Justices O'Connor and Kennedy both voted with the majority, they did so for very different reasons: Justice O'Connor, in part due to a lack of confidence in elected judges; Justice Kennedy, in part due to his strong First Amendment views.

If you doubt the sharp contrast between their positions, consider Justice Kennedy's tart comment in his White concurrence: "In resolving this case . . . we should refrain from criticism of the States' choice to use open elections to select those persons most likely to achieve judicial excellence." Feel free to substitute "Justice O'Connor" for "we" in that sentence - for that is exactly the criticism she made. This is as close as the Justices often get to admonishing each other, albeit indirectly.

Meanwhile, remember that O'Connor, in Bush v. Gore, had also joined the per curiam majority opinion to hold that the federal Constitution's Equal Protection guarantees limit states' discretion as to how they can conduct their elections. That opinion, of course, stopped the recount the Florida Supreme Court had ordered on the ground that it would not comply with Equal Protection principles. Just as in White, the majority - including O'Connor - elevated the Constitution's dictates above the states' ability to conduct their own elections their own way.

So much for the contention that the Court's conservatives are a monolithic block - and the contention that Justice O'Connor is unprincipled when it comes to her attitude towards state court systems, and the contention that her criticism of Florida Supreme Court was anomalous. In fact, her criticism of Minnesota is White is entirely consistent with her criticism of Florida in Bush v. Gore.

Justices Stevens and Ginsburg's Positions Are Consistent, As Well

He wrote, "What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed." It was the dissenters, he implied, not the majority, who had the proper level of confidence in, and deference to, Florida's system - to the state's right, that is, to regulate its own elections.

Meanwhile, in her Bush v. Gore dissent, Justice Ginsburg - who dissented without declaring herself "respectful" - was angrier than Justice Stevens but expressed similar views. Like him, she made arguments suggesting that the Bush v. Gore majority was insulting the Florida judiciary.

Justice Ginsburg complained, for example, that "instead of respecting the state high court's province to say what the State's Election Code means, the Chief Justice [who voted with the majority and also concurred separately] maintains that Florida's Supreme Court has veered so far from the ordinary practice of judicial review that what it did cannot properly be called judging."

Were Justices Stevens and Ginsburg hypocrites in the other direction, suddenly valuing states' rights - and the rulings of state courts - in Bush v. Gore because it helped the Democrat? If you think so, you should think carefully about their White positions.

Here's Justice Stevens in White: "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." In other words: Let Minnesota regulate the speech of judicial candidates as it sees fit.

And here's Justice Ginsburg in White: "Nothing in the Court's opinion convincingly explains why Minnesota may not pursue [its goal of an independent judiciary] in the manner it did." In sum, Justice Ginsburg's position, like Justice Stevens's, was that the state should be able to have elections for judgeships, and when it does, it should be able to regulate judicial candidates' right to speak.

Hypocrites? Not exactly. Both Justices went to bat for the state court system in both Bush v. Gore and White. Let Florida have the recounts its Supreme Court ordered, they argued then. And now they argue, quite consistently: Let Minnesota hold its judicial elections as it sees fit, regulated by its own Supreme Court's Canons of Judicial Conduct.

New Definitions of Conservatism and Liberalism on the Court

On this First Amendment issue, as I explained in my previous column, I have to side with Justice Scalia, who wrote the majority opinion in White. Like him, I don't want to live in a country where candidates (even for judgeships) are given a list of questions they can answer during an election, and are forced to fear penalties if they go beyond that limited list. Like him, I believe the First Amendment gives us far more freedom than that.

For that reason, it is a shame that the White opinion was lost, to some extent, in the end-of-Term scramble. It challenges liberals to consider whether the liberal Justices can sometimes be wrong - allowing a state to run roughshod over First Amendment rights. And most importantly, it poses a challenge to us all, to try to see the Court as it really is, not as we cynically fear it may be. After all, the Justices, in White, have shown the very same colors they showed in Bush v. Gore.

And that, in turn, suggests that those colors are probably their true colors - not just party-political plumage put on for the occasion. The Court, in short, may be adhering more closely to our hopes for it than the harsh commentators who castigated the Court after the 2000 election ever dreamed.

Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Currently a freelance writer, she published a memoir, The Bad Daughter, in 1998. Her first novel will be published in the U.S. in summer 2003 by Plume, and in French translation by Actes Sud.

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