Republican Party of Minn. v. White, 536 U.S. 765, 20 (2002)

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Opinion of the Court

But in any case, Justice Ginsburg greatly exaggerates the difference between judicial and legislative elections. She asserts that "the rationale underlying unconstrained speech in elections for political office—that representative government depends on the public's ability to choose agents who will act at its behest—does not carry over to campaigns for the bench." Post, at 806. This complete separation of the judiciary from the enterprise of "representative government" might have some truth in those countries where judges neither make law themselves nor set aside the laws enacted by the legislature. It is not a true picture of the American system. Not only do state-court judges possess the power to "make" common law, but they have the immense power to shape the States' constitutions as well. See, e. g., Baker v. State, 170 Vt. 194, 744 A. 2d 864 (1999). Which is precisely why the election of state judges became popular.12

of voluntarily demurring does not establish the legitimacy of legal compulsion to demur is amply demonstrated by the unredacted text of the sentence she quotes in part, post, at 819, from Laird v. Tatum, 409 U. S. 824, 836, n. 5 (1972): "In terms of propriety, rather than disqualification, I would distinguish quite sharply between a public statement made prior to nomination for the bench, on the one hand, and a public statement made by a nominee to the bench." (Emphasis added.)

12 Although Justice Stevens at times appears to agree with Justice Ginsburg's premise that the judiciary is completely separated from the enterprise of representative government, post, at 798 ("[E]very good judge is fully aware of the distinction between the law and a personal point of view"), he eventually appears to concede that the separation does not hold true for many judges who sit on courts of last resort, ante, at 799 ("If he is not a judge on the highest court in the State, he has an obligation to follow the precedent of that court, not his personal views or public opinion polls"); post, at 799, n. 2. Even if the policymaking capacity of judges were limited to courts of last resort, that would only prove that the announce clause fails strict scrutiny. "[I]f announcing one's views in the context of a campaign for the State Supreme Court might be" protected speech, ibid., then—even if announcing one's views in the context of a campaign for a lower court were not protected speech, ibid.—the announce clause would not be narrowly tailored, since it applies to high-

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