Republican Party of Minn. v. White,
536 U.S. 765 (2002)

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No.01-521. Argued March 26, 2002-Decided June 27, 2002

The Minnesota Supreme Court has adopted a canon of judicial conduct that prohibits a "candidate for a judicial office" from "announc[ing] his or her views on disputed legal or political issues" (hereinafter announce clause). While running for associate justice of that court, petitioner Gregory Wersal (and others) filed this suit seeking a declaration that the announce clause violates the First Amendment and an injunction against its enforcement. The District Court granted respondent officials summary judgment, and the Eighth Circuit affirmed.

Held: The announce clause violates the First Amendment. Pp. 770-788.

(a) The record demonstrates that the announce clause prohibits a judicial candidate from stating his views on any specific nonfancifullegal question within the province of the court for which he is running, except in the context of discussing past decisions-and in the latter context as well, if he expresses the view that he is not bound by stare decisis. Pp. 770-774.

(b) The announce clause both prohibits speech based on its content and burdens a category of speech that is at the core of First Amendment freedoms-speech about the qualifications of candidates for public office. The Eighth Circuit concluded, and the parties do not dispute, that the proper test to be applied to determine the constitutionality of such a restriction is strict scrutiny, under which respondents have the burden to prove that the clause is (1) narrowly tailored, to serve (2) a compelling state interest. E. g., Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 222. That court found that respondents had established two interests as sufficiently compelling to justify the announce clause: preserving the state judiciary's impartiality and preserving the appearance of that impartiality. Pp. 774-775.

(c) Under any definition of "impartiality," the announce clause fails strict scrutiny. First, it is plain that the clause is not narrowly tailored to serve impartiality (or its appearance) in the traditional sense of the word, i. e., as a lack of bias for or against either party to the proceeding. Indeed, the clause is barely tailored to serve that interest at all, inasmuch as it does not restrict speech for or against particular parties,


but rather speech for or against particular issues. Second, although "impartiality" in the sense of a lack of preconception in favor of or against a particular legal view may well be an interest served by the announce clause, pursuing this objective is not a compelling state interest, since it is virtually impossible, and hardly desirable, to find a judge who does not have preconceptions about the law, see Laird v. Tatum, 409 U. S. 824, 835. Third, the Court need not decide whether achieving "impartiality" (or its appearance) in the sense of openmindedness is a compelling state interest because, as a means of pursuing this interest, the announce clause is so woefully underinclusive that the Court does not believe it was adopted for that purpose. See, e. g., City of Ladue v. Gilleo, 512 U. S. 43, 52-53. Respondents have not carried the burden imposed by strict scrutiny of establishing that statements made during an election campaign are uniquely destructive of openmindedness. See, e. g., Landmark Communications, Inc. v. Virginia, 435 U. S. 829, 841. Pp. 775-784.

(d) A universal and long-established tradition of prohibiting certain conduct creates a strong presumption that the prohibition is constitutional, see McIntyre v. Ohio Elections Comm'n, 514 U. S. 334, 375-377. However, the practice of prohibiting speech by judicial candidates is neither ancient nor universal. The Court knows of no such prohibitions throughout the 19th and the first quarter of the 20th century, and they are still not universally adopted. This does not compare well with the traditions deemed worthy of attention in, e. g., Burson v. Freeman, 504

(e) There is an obvious tension between Minnesota's Constitution, which requires judicial elections, and the announce clause, which places most subjects of interest to the voters off limits. The First Amendment does not permit Minnesota to leave the principle of elections in place while preventing candidates from discussing what the elections are about. See, e. g., Renne v. Geary, 501 U. S. 312, 349. Pp. 787-788.

247 F.3d 854, reversed and remanded.

SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, and THOMAS, JJ., joined. O'CONNOR, J., post, p. 788, and KENNEDY, J., post, p. 792, filed concurring opinions. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined, post, p. 797. GINSBURG, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined, post, p. 803.

James Bopp, Jr., argued the cause for petitioners Republican Party of Minnesota et al. With him on the briefs were

Full Text of Opinion

Primary Holding

The First Amendment does not permit the government to prevent judicial candidates from stating their opinions on disputed political or legal issues.


Minnesota is one of the states where judges are elected. Candidates for a judicial office were forbidden by a canon of the Minnesota Supreme Court on judicial conduct from discussing their positions on disputed political or legal issues. A judicial candidate violated this rule by distributing literature that addressed several disputed issues. He eventually withdrew from the race, although he did not face sanctions from the ethics board. Returning to contest another election, the same candidate sought a declaratory judgment in federal court that the canon violated the First Amendment. The lower court issued summary judgment in favor of the defendants.



  • Antonin Scalia (Author)
  • William Hubbs Rehnquist
  • Sandra Day O'Connor
  • Anthony M. Kennedy
  • Clarence Thomas

For a content-based restriction, the First Amendment requires a strict scrutiny level of review. This means that the regulation must be narrowly tailored to further a compelling state interest. The state does not have a compelling interest in preserving the appearance of impartiality by elected judges, and the regulation is not a narrowly tailored means. There is no logical connection between prohibiting candidates from discussing their opinions during campaigns and the goal that they will apply the law in an equal and unbiased manner. Any judicial candidate will have certain personal opinions about issues and likely will have conveyed those opinions, but they should be trusted to make decisions in an unbiased manner regardless. Access to the opinions of potential judges should be made available to voters.


  • Sandra Day O'Connor (Author)

Electing judges is a dubious trend because it favors wealthy individuals who can fund their campaigns. Judges also may feel that they have a personal stake in the outcome of cases, which undermines the goal of impartiality.


  • Anthony M. Kennedy (Author)

When a content-based restriction does not fit into one of the categorical exceptions to First Amendment protection, it should be struck down automatically as unconstitutional. The voters should have free access to all available information when choosing among candidates.


  • Ruth Bader Ginsburg (Author)
  • John Paul Stevens
  • David H. Souter
  • Stephen G. Breyer

The state does have a compelling interest in promoting the appearance of impartiality among judges, who do not serve a particular constituency. This law is sufficiently narrowly tailored in furthering that goal.


  • John Paul Stevens (Author)
  • David H. Souter
  • Ruth Bader Ginsburg
  • Stephen G. Breyer

Case Commentary

Strict codes of ethics require impartiality from judges, even though their campaigning during the election process may cause them to resemble political figures.

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