536 U.S. 765 (2002), argued 26 March 2002, decided 27 June 2002 by vote of 5 to 4; Scalia for the Court, O’Connor and Kennedy concurring, Ginsburg and Stevens in dissent.
Thirty-nine states have some form of election to select or retain all or some of their judges. Those elections differ in various ways from elections for other state offices, such as restricting political speech during campaigns. In White, the Court considered a canon of judicial conduct of the Minnesota Supreme Court that prohibited judicial candidates from announcing their views on disputed legal or political issues. The majority of the Court, speaking through Justice Antonin Scalia, held that the ban violated the First Amendment, because it prohibited political speech at the core of First Amendment protections. The prohibition did not survive a strict scrutiny test, because it was not narrowly tailored to serve a compelling state interest. In particular, a restriction on statements made in a judicial campaign did not serve the purported goal of electing impartial judges. Nor was there a long-established tradition in American history of limiting such speech; judicial codes restricting judicial campaign speech were first advanced by the American Bar Association (ABA) in the 1920s. States may not mandate judicial elections while simultaneously preventing candidates from discussing issues. The dissenters argued that judges were different than political figures, and that states could restrain candidate speech in the interest of maintaining an impartial judiciary.
The majority opinion disclaimed any holding that the First Amendment requires that judicial campaigns be treated the same way as campaigns for other political offices. Nonetheless, the decision seems to subject other regulation of judicial campaigns, such as campaign finance restrictions, to the same scrutiny of those in nonjudicial contests. The ABA and the states began rewriting codes of judicial campaign conduct in light of the decision while efforts in many states to revisit methods of judicial selection have gathered steam.
Michael E. Solimine