Last week was replete with reminders that there was something to be said for the Ninth Circuit Court's ruling that there is something wrong with the Pledge of Allegiance's assertion that this is "one nation under God." But that court, famously imaginative and frequently reversed, got wrong what is wrong. The phrase "under God" hardly constitutes "establishment" of religion. But it is inaccurate: this is one nation under judges.
Although conservatives, especially, were apoplectic about the circuit court's (doubtless short-lived) decision, it has aroused wholesome indignation about the too-central role of judges in the nation's governance. And conservatives, especially, were pleased last week by the Supreme Court's decision to get out of the way of states and localities that want school-choice programs that empower parents to choose to direct public tuition money to religious schools.
Largely lost sight of in the swirling controversy surrounding those decisions was a third, which also illuminates the often uneasy accommodation between democratic values and the judiciary's role. It illustrates how dubious ideas beget bad ideas.
Minnesota became a state in 1858, the year after the most inflammatory act of judicial highhandedness--the Dred Scott decision which, by holding that blacks could not become citizens and that the federal government could not prohibit slavery in the territories, hastened the Civil War. So it is understandable that Minnesota's constitution provided for an elected judiciary.
Understandable, but unwise. Election of judges, a practice that spread rapidly with the spirit of Jacksonian democracy, problematically injects into the system of administering justice the activities involved in candidates' courtships of voters. Some states, including Minnesota, attempt to have judicial elections minus politics by restricting what judicial candidates are allowed to say and do when running.
Last week the Supreme Court ruled, 5-4, that Minnesota's restrictions violate the constitutional guarantee of freedom of speech. The court's opinion, written by Justice Scalia and joined by Rehnquist, O'Connor, Kennedy and Thomas, and the dissents, written by Stevens and Ginsburg and joined by Breyer and Souter, contain clues about how this year's campaign-finance legislation will fare when the court examines the limits it puts on the amount, timing and content of political communications.
Minnesota's judicial elections are nonpartisan and are conducted under the rule that no "candidate for a judicial office, including an incumbent judge," may "announce his or her views on disputed legal or political issues." Nine states have such "announce" clauses. So did the American Bar Association's Model Code of Judicial Conduct until 1990, when the ABA decided the announce clause was an overbroad restriction on speech, and replaced it with the rule that a judicial candidate shall not make "statements that commit or appear to commit the candidate with respect to cases, controversies, or issues that are likely to come before the court."
But in our litigious "one nation under judges," everything is likely to come before a court, so it is unclear how the ABA has improved upon Minnesota's rule. Minnesota also forbids a candidate to criticize any past court ruling if he also says he is not bound by stare decisis (respect for precedent). So what is the point of elections, if candidates are forbidden to talk about the very things the voters are interested in and the election is supposedly about? Good question, said Scalia, who answered it as follows:
Minnesota prohibits speech on the basis of content, and the sort of speech most meriting First Amendment protection, that about the qualifications of candidates for public office. This is supposed to preserve the judiciary's "impartiality," or the appearance of that. But it restricts speech not about particular parties to particular cases but about particular issues or views. And a judge without preconceptions about the law would not be open-minded, he would be empty-headed. A judge whose mind is a complete tabula rasa is not what Minnesota's constitution demands: "Judges... shall be learned in the law." And Minnesota's Code of Judicial Conduct encourages judges to "write, lecture, teach, speak and participate in other extrajudicial activities concerning the law."
The dissenters emphasize--as do supporters of the new federal regulations on campaigns for nonjudicial offices--"appearances." They say Minnesota's abridgment of judicial candidates' freedom of speech is necessary because due process appears to be violated when a judge ruling one way or another can affect his prospects for re-election. But that, says Scalia, means that judicial elections themselves violate due process.
What does this Minnesota case suggest about what the court will think of the new campaign law? Five justices seem markedly reluctant to countenance restrictions on speech involving candidates for elective office. And the other four justices seem inclined to be more tolerant of restrictions on judicial than on nonjudicial candidates.
But there is much guessing about governance in "one nation under judges."