Illustration: Chris Sharp

In more than half of all states—39, to be exact—judges are elected. In most of these states, candidates running for the bench have been treated differently from candidates for other offices. They have had stricter constraints on how they raise money, for instance. And they have been prevented from declaring positions on issues that may come before them should they win. In 2002, however, the U.S. Supreme Court weighed in on whether a state, by imposing such a gag rule, violated the First Amendment right of aspiring judges to free speech. In Republican Party of Minnesota v. White, by a 5–4 majority, the Court struck down a Minnesota ban on judicial candidates airing their views about “disputed legal or political issues.” In the April 2008 issue of the William and Mary Law Review, Boston College law professor George Brown examines the arguments of the White decision and the increasing politicization of state courts. “We may well be witnessing a transformation of the American judiciary,” he writes.

Brown calls attention to three trends: first, the growing tendency of judicial candidates to broadcast their views. Is the candidate pro-life, for instance? Does he or she favor maximum sentencing? (One candidate, running for a Texas judgeship in 1998 under the moniker “Maximum Marion” Bloss, left no doubt.) Second, there has been a rise in negative advertising. In 2002, 10 percent of all judicial campaign ads were deemed negative by the nonpartisan organization Justice at Stake; by 2004, that figure had doubled. Brown singles out an ad in the 2006 race for Alabama chief justice: Horror music is heard and a hand wields a knife to remind voters of the incumbent’s commutation of a death row sentence. And third, there has been what Brown terms a “dramatic” increase in campaign spending. In the three election cycles between 2000 and 2004, judicial candidates across the country raised 67 percent more money than in the prior three election cycles. A race for the Illinois Supreme Court in 2004 cost its two candidates a total of $9.3 million. The concern, says Brown, is that “money will taint the judicial process.” He cites an investigation of the Ohio Supreme Court by the New York Times in 2006, which concluded that justices “routinely” sat on cases involving contributors and voted in their favor “70 percent of the time.”

The problem with the Supreme Court’s decision in White, says Brown, is that it depends on a false “equation of judicial elections with elections to other political offices.” Writing for the majority, Justice Antonin Scalia asserted, “If the State chooses to tap the energy and legitimizing power of the democratic process, it must accord the participants in that process . . . the First Amendment rights that attach.” And yet, notes Brown, the role of an elected judge differs from that of a congressman or governor. “We expect elected executives and legislators to be partisan when they’re in office,” he says, “but the courts . . . are expected to be, and ought to be, impartial.” Brown quotes the dissenting opinion of Justice Ruth Ginsburg: “The perception of that unseemly quid pro quo—a judicial candidate’s promises on issues in return for the electorate’s votes at the polls—inevitably diminishes the public’s faith in the ability of judges to administer the law without regard to personal or political self-interest.”

As the reputation of state courts for impartiality wanes among voters, writes Brown, it also dims in the eyes of federal judges, and that imperils the equipoise that over centuries has marked our system of judicial federalism. Increasingly, he notes, the Supreme Court is choosing to review state courts’ damage awards challenged on grounds of due process. And yet, Brown writes, state courts have it in their capacity to “enrich [judicial] discourse” and to serve as incubators of positive change. He quotes Justice Louis Brandeis: “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

“White is not going away,” writes Brown, but “it need not be read broadly.” He points to another Supreme Court decision, Buckley v. Valeo (1976), the foundation of modern campaign finance law. Buckley upheld restrictions on contributions despite the acknowledged infringement of First Amendment rights, says Brown, and it “appears to retain its force.” Indeed, more states are moving toward public financing of judicial campaigns. Maintaining confidence in the judiciary system, Brown believes, is the sort of “compelling state interest” that justifies limits on free speech.

Chris Berdik is a writer in Boston.

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