The Political Activities of Judges: Historical, Constitutional, and Self-Preservation Perspectives

71 Pages Posted: 5 Apr 2019

See all articles by Ray McKoski

Ray McKoski

University of Illinois Chicago School of Law

Date Written: March 24, 2019

Abstract

Throughout most of the country’s history judges freely engaged in politics. It was not until the late 1970s that states instituted serious efforts to enforce ABA-based judicial code provisions restricting political activities. Extracting judges from politics was no simple task because most states elected or retained all or some of their judges through public elections. Eventually efforts were successful in limiting political engagement by judges.

Then, in 2002, the Supreme Court entered the picture. In Republican Party of Minnesota v. White, the Court found that a rule barring judicial candidates from announcing views on political and legal issues failed strict scrutiny. After White, courts invalidated other long-standing speech restrictions. But nine years later in Williams-Yulee v. Florida Bar, the Court upheld Florida’s rule prohibiting judicial candidates from personally soliciting campaign funds. Shifting gears, lower courts began to sustain speech restrictions on the theory that Williams-Yulee fashioned a new, less rigorous form of strict scrutiny for judicial campaign speech.

Regardless of the Court’s ultimate assessment of the First Amendment rights of judges and judicial candidates, another dynamic — political necessity — portends the expansion of political speech by judges. As illustrated by California’s recent experience, defending the courts against partisan attacks often requires political action broader than that permitted by most judicial codes.

Part I describes the nonstop political activity of judges during the country’s first two hundred years. Part I also traces the ABA’s uphill battle to curtail the political engagement of judges through model codes of judicial conduct. Examining the Court’s pronouncements on judicial candidates’ speech, Part II concludes that (1) under traditional strict scrutiny many current speech restrictions will fall; and (2) several restrictions cannot withstand even a watered-down version of strict scrutiny. Part II further predicts an independent effort by the judiciary to relax political activity restrictions so that judges may better defend themselves from partisan attacks.

Keywords: judicial conduct, judicial ethics, judicial speech, Model Code of Judicial Conduct, judicial independence, Republican Party of Minnesota v. White, Williams-Yulee v. Florida Bar, judicial selection, courts

JEL Classification: K40, K42

Suggested Citation

McKoski, Ray, The Political Activities of Judges: Historical, Constitutional, and Self-Preservation Perspectives (March 24, 2019). University of Pittsburgh Law Review, Vol. 80, No. 2, 2018, Available at SSRN: https://ssrn.com/abstract=3359316

Ray McKoski (Contact Author)

University of Illinois Chicago School of Law ( email )

315 South Plymouth Court
Chicago, IL 60604
United States

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