Judicial Notebook

The U.S. Supreme Court has been criticized by many for ultimately resolving the last presidential election. Nonetheless, the Court recently accepted for review a case likely to embroil it once again in the electoral process. In Republican Party of Minnesota v. Kelly (No. 01-521) (70 USLW 3369), the Court will address how judges should be elected. More than half of the states select at least some of their judges by popular election. Although these elections typically receive less attention, the selection of judges has a significant impact on the governance of this country.

Historical backdrop

This case addresses issues with which a number of courts have wrestled and reflects a debate dating back to the Founding Fathers. Alexander Hamilton asserted that judges should be appointed rather than elected because the latter would result in judges tending to consult popular opinion rather than deciding cases based on the law. Patrick Henry and George Mason, however, argued that the selection of judges and control over the power they wield should remain in the hands of the people. Although Hamilton's position prevailed within the federal system, the states remain free to select their judges as they see fit.

The Supreme Court in this case will assess the legality of a state ban on judicial candidates announcing their "views on disputed legal or political issues." A judicial candidate claims this restriction violated his right to free speech and the rights of the electorate to receive needed information about candidates. Defenders of the ban argue this limitation is necessary to ensure that the judges' decision-making is unsullied by the political process and that judges are not perceived to have predetermined cases they hear.

Eighth Circuit opinion

The Eighth Circuit sharply split in this case. The majority acknowledged that freedom of speech reaches its high-water mark in the context of political expression and that debate about the qualifications of candidates for public office is a core First Amendment freedom. However, the majority held this Minnesota ban reflected proper determinations that this restriction on speech was necessary to guarantee the independence of the judiciary, that affiliation with a partisan program has no role in judicial campaigns and that candidates should be prevented from implying how they will decide cases that might come before them as a judge. Pronouncements about disputed issues, the majority reasoned, would result in judges appearing to have either prejudged cases when they rule consistently with their previously expressed positions or to appear as dissemblers if they reach contrary positions. Furthermore, the majority asserted, some judges' decision-making would be influenced by the potential of supporter abandonment at the next election if they think their election was based on campaign representations.

The dissent asserted that such a restriction undermines the democratic process and does not enhance judicial independence. The dissent focused on the long history of judicial elections in Minnesota and repeated affirmations by its electorate of the importance of judicial accountability. The dissent argued that a merit-based election necessitated that voters be fully informed about the candidates being considered and this restriction curtailed voters' rights to hear a candidate's views on those issues most pertinent to future conduct in office. The dissent hypothesized that this restriction would result in higher rates of incumbent retention, an enhanced role for special interests and disproportionate campaign fund-raising.

Research issues for psychologists

The Eighth Circuit opinion explicitly notes that empirical evidence must substantiate such a curtailment of speech in judicial elections. However, most social scientists would consider the evidence on which the Eighth Circuit relied to be relatively scanty. The court looked at a state senator's sworn statement, contemporaneous newspaper accounts and the passage of a related statewide initiative.

Instead of relying on anecdotal accounts, psychologists could provide better information to assist the resolution of such a case. An assessment could be provided of whether and how such a restriction impacts voters' evaluations of judicial candidates and what information is needed for the electorate to make informed decisions about candidates. Also, research could appraise the impact of such speech on judicial behavior and public perceptions of the judiciary. For example, psychologists could determine whether pronouncing a position during an election is likely to influence subsequent judicial decision-making or whether judges, with their special expertise and acting under their oath of office, can set aside stated predispositions in ruling on a specific case. Similarly, research could address whether judicial electoral statements lead to public perceptions that judges are biased or whether any such perceptions are overshadowed when judges pronounce their positions in subsequent rulings.