- The Washington Times - Monday, July 1, 2002

In a ringing 5-to-4 decision last Thursday, the Supreme Court reaffirmed the principle that elections are about ideas and that the censorship of political ideas violates the First Amendment.
In Minnesota, as in 39 other states, the people elect their state court judges. Gregory Wersal had wanted to run for a position on the Minnesota Supreme Court on the platform that the current court had made some bad legal decisions.
To prevent his successful candidacy in what Justice O'Connor called, at oral argument, an "incumbency protection" system the Minnesota courts made it "unethical conduct" for a judicial candidate to announce his views on "controversial" matters, i.e. judicial issues of contemporary concern. Thus, a candidate such as Mr. Wersal could not, for example, announce that he thought the state court's recent abortion funding decision was wrongly decided.
This restriction was, as the Supreme Court recognized last Thursday, far broader than it needed to be. If the interests of Minnesota were in ensuring that judicial candidates did not promise to vote a particular way in particular cases, then that interest, the Supreme Court said, could be served by a more direct prohibition making it improper for a judicial candidate to promise a particular vote in a particular case or commit himself to a particular result a prohibition everyone agrees is appropriate. But the broader prohibition struck down by the Supreme Court amounted to a ban on all criticism of state judges and the results of their decisions. For example, the Minnesota Supreme Court has decided that the state constitution requires the state to fund abortions for the poor.
Mr. Wersal, running for election, was not free to say that in his view Minnesota's constitution was no different from the United States', which the U.S. Supreme Court has said contains no equal funding requirement. In effect, the restriction made campaigning for judicial election on the merits of issues impossible, as the candidates could not express their views on matters of judicial philosophy or of interest to the public. It was as if Minnesota decided to have an election but didn't let anyone say what they believed in. That prospect was unreasonable in judicial elections, just as it would be in elections of politicians.
In a way Justice O'Connor was right the restrictions imposed by Minnesota were intended to protect incumbents from successful challenge by insulating them from sustained criticism. But there was a far more insidious (and possibly even unintended) consequence of the restriction on the freedom of judicial speech the promotion of an ideology of judicial activism.
State courts which are, of course, the only courts where elections are held are constitutionally subservient to the Federal court system and the U.S. Supreme Court on matters of federal law. Thus, decisions of the Supreme Court of the United States set a federal floor for the judicial recognition of new "rights" below which the state supreme courts may not fall. As a result, the only direction in which a state supreme court may develop its own body of law, if it diverges from the federal model at all, is in the direction of adding State constitutionally defined rights to those already set by the federal courts. The system is biased so that state courts can only give us more judicial intervention, not less.
The Minnesota abortion funding decision is, thus, instructive. Had the U.S. Supreme Court said that the Equal Protection clause of the U.S. Constitution required indigent funding of abortions, no state court would have been free to disagree the U.S. Supreme Court decision would become the law of the land binding all states. But when the U.S. Supreme Court declines to identify some alleged entitlement to protection in the U.S. Constitution, activist state judges that wish to do so often find that same protection in their own state constitutions. Thus, the structure of the federal-state judicial system is such that the state courts act as a one-way ratchet they can only add state judicially created rights beyond what the U.S. Constitution provides, never reduce judicial intervention in the public sphere. In effect, the "direction" a state supreme court tends to go, doctrinally, is an activist one.
And so the distorting effect of the restrictions on judicial free speech becomes clear. Since the state court direction is, of necessity, a "progressive" one, the prohibition on criticism is, in effect, predominantly a restraint on conservative critiques. Not only does the Supreme Court's decision strikes a blow for free speech and a blow for an informed electorate, it is particularly to be welcomed because it strikes a blow for open and effective conservative criticism of the one-way ratchet of judicial activism that operates in the state courts.

Paul Rosenzweig is a senior legal research fellow at the Heritage Foundation and an adjunct professor of law at George Mason University School of Law.

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