536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002)
Since Minnesota's admission to the Union in 1858, the State's Constitution has provided for the selection of all state judges by popular election.1 Since 1912, those elections have been nonpartisan.2 Since 1974, they have been subject to a legal restriction which states that a candidate for a judicial office, including an incumbent judge, shall not announce his or her views on disputed legal or political issues.3 The Minnesota Code of Judicial Conduct containing this announce clause is based on the American Bar Association Model Code of Judicial Conduct.4
In 1996, petitioner Gregory Wersal ran for associate justice of the Minnesota Supreme Court.5 During his campaign, he distributed literature criticizing several Minnesota Supreme Court decisions on issues such as crime, welfare, and abortion.6 A complaint was filed against him with the Office of Lawyers Professional Responsibility challenging the propriety of this literature under the announce clause.7 The Lawyers Board dismissed the complaint, expressing doubt whether the clause could constitutionally be enforced, but Wersal withdrew from the election out of concern for his law practice.8
In 1998, Wersal ran again for the same office.9 Early in that race, he sought an advisory opinion from the Lawyers Board on enforcement of the announce clause but received an equivocal response because he had not submitted specific announcements.10 Shortly thereafter, Wersal and other plaintiffs including the Minnesota Republican Party filed this lawsuit in the United States District Court for the District of Minnesota.11 They sought a declaration that the announce clause violates the First Amendment and an injunction against its enforcement.12
The parties filed cross-motions for summary judgment.13 The District Court found in favor of respondents, holding that the announce clause did not violate the First Amendment.14 Over a dissent, the United States Court of Appeals for the Eighth Circuit affirmed the district court's judgment.15 The Supreme Court granted certiorari to review the case.16
Whether the First Amendment permits the Minnesota Supreme Court to prohibit candidates for judicial election in that State from announcing their views on disputed legal and political issues?17
No. The announce clause fails strict scrutiny when applied to the established facts.20 Minnesota has selected its judges through contested popular elections since statehood in 1858, with nonpartisan elections since 1912 and the announce clause in place since 1974. Gregory Wersal distributed campaign literature in 1996 criticizing Minnesota Supreme Court decisions on crime, welfare, and abortion, prompting a complaint that the Lawyers Board dismissed while expressing constitutional doubts, after which Wersal withdrew. In 1998 Wersal sought an advisory opinion before running again but received an equivocal response and, together with the Minnesota Republican Party, filed suit seeking a declaration and injunction.21
The District Court granted summary judgment to respondents and the Eighth Circuit affirmed. The clause restricts only announcements on disputed issues likely to come before the court while permitting general statements of judicial philosophy and criticism of past decisions, yet it leaves untouched the same statements made before a candidate declares or after election.22 Because the clause is substantially underinclusive with respect to the asserted interests in impartiality and the appearance of impartiality, and because less restrictive alternatives such as recusal rules exist, it is not narrowly tailored.23 The clause therefore violates the First Amendment as applied to these facts.24
The Minnesota announce clause violates the First Amendment.25
Related opinions on this issue
Justice O’Connor joined the opinion of the Court but wrote separately to express concerns about judicial elections generally.26 She observed that elected judges are likely to feel they have a personal stake in the outcome of every publicized case because an electorate dissatisfied with an outcome can harm reelection prospects.27 Campaign fundraising requires judicial candidates to seek donations, risking the appearance that judges favor donors.28
Minnesota has chosen to select its judges through contested popular elections, voluntarily taking on the risks to judicial bias.29 The State's claim that it needs to restrict judges' speech to protect impartiality is particularly troubling because the State brought the problem upon itself.30
Justice Kennedy concurred in the judgment.31 He agreed that the prohibition is an unconstitutional abridgment of freedom of speech.32 He adhered to the view that content-based speech restrictions outside traditional exceptions should be invalidated without inquiry into narrow tailoring.33
The political speech of candidates is at the heart of the First Amendment.34 Judicial integrity is a state interest of the highest order.35 Minnesota may choose to have an elected judiciary and may strive to define judicial excellence.36
It may not censor what the people hear as they decide which candidate is most likely to be an exemplary judicial officer.37
Joined by Justices Souter, Ginsburg, And Breyer
Justice Stevens dissented.38 He argued that the Court's decision threatens to undermine the integrity of the judiciary.39 States have a compelling interest in maintaining a judiciary that is both impartial and appears impartial.40
The Court's holding rests on a misunderstanding of the role of judges.41 Unlike legislators, judges are not policymakers.42 They must decide cases based on the law and the facts, not on their personal views.43
When a candidate announces views on a disputed issue, the public may reasonably believe the candidate will decide cases based on those views rather than on the law. The announce clause is narrowly tailored because it only prohibits announcements on specific disputed issues likely to come before the court.44
Joined by Justices Stevens, Souter, And Breyer
Justice Ginsburg dissented and joined Justice Stevens's opinion.45 She added that the Court's decision will have unfortunate consequences by encouraging judicial candidates to make promises on specific issues.46 This will politicize the judiciary and undermine the rule of law.47
The majority's narrow tailoring analysis is flawed because the announce clause is a limited restriction applying only during campaigns and only to specific statements.48 The State's interest in an impartial judiciary is at its zenith in judicial elections.49 The clause is a reasonable means of protecting that interest.50
Minnesota has endeavored to balance interests in judicial integrity and free expression within an elected judiciary.51