Judging Judges: Why Strict Scrutiny Resolves the Circuit Split over Judicial Speech Restrictions

INTRODUCTION On June 27, 2002 the Supreme Court, in Republican Party of Minnesota v. White (1), struck down as unconstitutional a provision of Minnesota's judicial code that prohibited judicial candidates from announcing their views on disputed legal and political issues. (2) In a five-four opinion, the majority reviewed the speech restriction under strict scrutiny and held that the regulation was not narrowly tailored to meet a compelling state interest, therefore violating judicial candidates' First Amendment rights. (3) Judicial election has been a longstanding feature of the majority of states' judicial selection. (4) Currently, forty states have some form of judicial election system. (5) Further, regulation of judicial candidates' speech during elections is not uncommon. Traditionally, the judiciary has been regarded as the "guarantor of individual rights," (6) "dedicated to 'inflexible and uniform adherence' to the 'fundamental law' of the Constitution." (7) Inherent in the role of the judiciary is the notion that judges must act impartially in applying the law, "putting aside any preconceived notions, political agendas, social commitments, and personal biases." (8) However, the election process, and the accompanying politicization, has posed threats to this idea. Accordingly, the majority of states that elect their judges have adopted codes of judicial conduct, which effectively regulate and restrict judicial campaign speech in order to maintain the "independence, integrity [and] impartiality" of its judiciary. (9) The decision in White was especially notable because it was the first time the Supreme Court considered the constitutionality of states' restrictions on judicial campaign speech. Many of these provisions regulating judicial speech had gone unchallenged for quite some time, and were generally abided by until recent times. (10) In invalidating Minnesota's "announce" clause, White made clear that states would not be permitted to stifle judicial candidate speech at the expense of First Amendment protections. (11) Indeed, the Court subjected Minnesota's speech restriction to strict scrutiny, the most intensive type of judicial review. (12) However, the decision also left many issues unanswered. Justice Kennedy, in his concurring opinion, emphasized the fact that the holding applied to judicial candidates rather than incumbent judges. (13) Thus, he noted that the opinion left open the possibility that public employee speech principles, which allow for greater government regulation and less judicial scrutiny, could be extended to sitting judges seeking reelection. (14) After White, lower courts began considering the legality of other provisions restricting judicial campaign speech. (15) However, the courts have split on the appropriate level of scrutiny with which to review judicial speech restrictions. Like the Supreme Court in White, the Sixth and Eighth Circuits have rightly afforded judicial candidates' speech the utmost protection under the First Amendment, and have reviewed these restrictions under strict scrutiny. (16) On the other hand, the Seventh Circuit, acknowledging Justice Kennedy's concurrence, has applied a lesser "balancing test" to uphold the validity of various provisions, based on the faulty premise that judicial candidates are public employees. (17) This Note explores the constitutionality of restraints on judicial election speech, specifically focusing on the appropriate level of scrutiny that courts should afford when reviewing the validity of such restraints. Part I provides an overview of the Court's First Amendment jurisprudence with respect to both strict scrutiny and the balancing test standard. Part II examines the White decision in its entirety. Part III summarizes lower courts' application of White, and the circuit split that has emerged regarding the appropriate standard of review for judicial speech restraints. Part IV argues that restrictions on judicial candidates' speech, like restrictions on all other political speech must be reviewed under strict scrutiny. …