In the recent case of Republican Party of Minnesota v. White, the Supreme Court proclaimed a First Amendment right of free speech for elected judges. The majority's holding is marked by a critical omission: it reached its decision without performing an analysis of the role of either the state or the federal judiciary in the American democracy. The Court failed to acknowledge the Founders' apparent intent that state and federal courts perform the same function.
In our democratic and adversarial system, judges are to act essentially as referees, as impartial decision-makers. Judicial officers do not act in a representative capacity for any constituency. Judges must straddle the dual mandates of our democracy, mandates that are in perpetual conflict: that our government be both "a government of the people, by the people, and for the people" and "a government of laws, not men."
In the absence of a definition of the judge's unique role, the majority turned to the fact of elections as transforming judges into politicians. The Court's error is that electing judges affects only their method of selection but not their role in our democracy.
The majority opinion was written in broad terms that, if taken to their logical conclusion, threaten to erode current state codes of judicial ethics and to lead to numerous detrimental consequences, all of them surely unintended by this Court.
The central problem is this: the more that judicial candidates speak, whether this speech occurs during state elections or during federal confirmation hearings, the more thoroughly politicized our courts become.
Recusal is not an adequate remedy for the exercise of judicial "free speech." The deleterious impacts of White can be avoided if the Court in the future limits its scope to the single "announce" clause that was the specific subject of their holding. Current state codes of ethics remaining in place after White provide a sufficient basis to preserve judicial duties to the American polity. In addition, the ethical standards that the members of the Supreme Court observed in their confirmation hearings may in fact be applied to all courts in our democracy, including elected state courts.
Robert H. Alsdorf,
The Sound of Silence: Thoughts of a Sitting Judge on the Problem of Free Speech and the Judiciary in a Democracy,
30 Hastings Const. L.Q. 197
Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol30/iss2/1