Judges and Politics

One of our law students was telling me he recently attended a reception where former Chief Justice of the Massachusetts Supreme Judicial Court Margaret Marshall spoke about the increasing mix of judges with politics. She says, it's a problem, not surprisingly. And I don't think that she is drawing any partisan line about this, though I did not hear her speech. Here is a link to the event at which she spoke where she received a medal from Radcliffe. Here is a report of Chief Justice Marshall's speech. She used as an example of the ways in which the First Amendment of the federal Constitution is being used to "undermine the notion of impartial justice" a 2002 U.S. Supreme Court decision, Republican Party of Minnesota v. White.

A summary of the facts of the case and the main issue provided by the Oyez project:

Minnesota's Constitution provides for the selection of all state judges by popular election. The announcement clause of the Minnesota Supreme Court's canon of judicial conduct prohibits a candidate from announcing his or her views on disputed legal or political issues. While running for associate justice of the Minnesota Supreme Court, Gregory Wersal filed suit, seeking a declaration that the announce clause violates the First Amendment and an injunction against its enforcement. Wersal alleged that he was forced to refrain from announcing his views on disputed issues during the 1998 campaign, to the point where he declined response to questions put to him by the press and public, out of concern that he might run afoul of the announce clause. The District Court found that the announcement clause did not violate the First Amendment. The Court of Appeals affirmed.

Question

Does the First Amendment permit the Minnesota Supreme Court to prohibit candidates for judicial election in that State from announcing their views on disputed legal and political issues?

In a 5 - 4 decision, the Court ruled that the Minnesota rule prohibiting judges from announcing views on disputed legal or political issues was an unconstitutional burden on the judicial candidates' freedom of speech. Chief Justice Marshall finds the decision very disturbing for several reasons, according to the report in the Harvard Magazine. Most disturbing seemed to be the “short shrift given by the Court to the very notion that judges must be, or even can be, impartial.”

The White decision, Marshall said, opened “a Pandora’s box of noxious influences on the principle, and the reality, of fair, impartial justice in our state courts.” The ruling opened the door, Marshall noted, for judges in other jurisdictions to “strike down other rules of judicial ethics aimed at ensuring the integrity of our courts,” including rules prohibiting “judges and judicial candidates from promising in advance to decide certain cases a certain way,” or from personally soliciting campaign donations.

Margaret Marshall was notably even-handed in her speech, quoting both Newt Gingrich and Sandra Day O'Connor in making her points. But if one adds other straws in the journalistic wind to this speech, there is a very disturbing picture that seems to be growing of the current state of the federal judiciary at least. I have seen very little discussion of the article that appeared in the New Yorker magazine, May 21, 2012 by Jeffrey Toobin, "Money Unlimited: How Chief Justice John Roberts Orchestrated the Citizens United Decision."

See also, this brief article from the Brennan Center for Justice at New York University School of Law, "Judges and Politics Don't Mix."
by Adam Skaggs, dated 2/12/10. Here is a N.Y. Times article about the Minnesota case.