Republican Party of Minn. v. White, 536 U.S. 765, 19 (2002)

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Cite as: 536 U. S. 765 (2002)

Opinion of the Court

clause.9 They are not, however, the views reflected in the Due Process Clause of the Fourteenth Amendment, which has coexisted with the election of judges ever since it was adopted, see infra, at 785-786.

Justice Ginsburg devotes the rest of her dissent to attacking arguments we do not make. For example, despite the number of pages she dedicates to disproving this proposition, post, at 805-809, we neither assert nor imply that the First Amendment requires campaigns for judicial office to sound the same as those for legislative office.10 What we do assert, and what Justice Ginsburg ignores, is that, even if the First Amendment allows greater regulation of judicial election campaigns than legislative election campaigns, the announce clause still fails strict scrutiny because it is woefully underinclusive, prohibiting announcements by judges (and would-be judges) only at certain times and in certain forms. We rely on the cases involving speech during elections, supra, at 781-782, only to make the obvious point that this underinclusiveness cannot be explained by resort to the notion that the First Amendment provides less protection during an election campaign than at other times.11

9 Justice Ginsburg argues that the announce clause is not election nullifying because Wersal criticized past decisions of the Minnesota Supreme Court in his campaign literature and the Lawyers Board decided not to discipline him for doing so. Post, at 811-812. As we have explained, however, had Wersal additionally stated during his campaign that he did not feel bound to follow those erroneous decisions, he would not have been so lucky. Supra, at 772-773. This predicament hardly reflects "the robust communication of ideas and views from judicial candidate to voter." Post, at 812.

10 Justice Stevens devotes most of his dissent to this same argument that we do not make.

11 Nor do we assert that candidates for judicial office should be compelled to announce their views on disputed legal issues. Thus, Justice Ginsburg's repeated invocation of instances in which nominees to this Court declined to announce such views during Senate confirmation hearings is pointless. Post, at 807-808, n. 1, 818-819, n. 4. That the practice


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