Republican Party of Minn. v. White, 536 U.S. 765, 21 (2002)

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

Opinion of the Court


To sustain the announce clause, the Eighth Circuit relied heavily on the fact that a pervasive practice of prohibiting judicial candidates from discussing disputed legal and political issues developed during the last half of the 20th century. 247 F. 3d, at 879-880. It is true that a "universal and long-established" tradition of prohibiting certain conduct creates "a strong presumption" that the prohibition is constitutional: "Principles of liberty fundamental enough to have been embodied within constitutional guarantees are not readily erased from the Nation's consciousness." McIntyre v. Ohio Elections Comm'n, 514 U. S. 334, 375-377 (1995) (Scalia, J., dissenting). The practice of prohibiting speech by judicial candidates on disputed issues, however, is neither long nor universal.

At the time of the founding, only Vermont (before it became a State) selected any of its judges by election. Starting with Georgia in 1812, States began to provide for judicial election, a development rapidly accelerated by Jacksonian democracy. By the time of the Civil War, the great majority of States elected their judges. E. Haynes, Selection and Tenure of Judges 99-135 (1944); Berkson, Judicial Selection in the United States: A Special Report, 64 Judicature 176 (1980). We know of no restrictions upon statements that could be made by judicial candidates (including judges) throughout the 19th and the first quarter of the 20th century. Indeed, judicial elections were generally partisan during this period, the movement toward nonpartisan judicial elections not even beginning until the 1870's. Id., at 176-177;

and low-court candidates alike. In fact, however, the judges of inferior courts often "make law," since the precedent of the highest court does not cover every situation, and not every case is reviewed. Justice Stevens has repeatedly expressed the view that a settled course of lower court opinions binds the highest court. See, e. g., Reves v. Ernst & Young, 494 U. S. 56, 74 (1990) (concurring opinion); McNally v. United States, 483 U. S. 350, 376-377 (1987) (dissenting opinion).


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