Counter-Majoritarian Power and Judges' Political Speech


Canons of ethics restrict judicial campaigning and prohibit sitting judges from engaging in political activity. Only recently, in Republican Party v. White, 536 U.S. 765 (2002), has the Supreme Court addressed the constitutionality of these restrictions, concluding that judicial candidates must be allowed some opportunity to discuss legal and political issues in their campaigns. But White left many questions unanswered about the permissible scope of restrictions on judges’ political activity.

This Article suggests that those questions will be answered not by applying principles of free speech, but by analyzing the opportunities the restrictions provide for independent judicial policy-making. Restrictions on judicial politics limit the public’s ability to alter judicial policy at the ballot box and induce respect for the courts by creating an unrealistic image of judges as apolitical, ultimately increasing the authority of courts to effect policy immune from the influence of the public.

As a result, this Article argues, judicial-free-speech cases pit those who cherish the independence of the courts and fear majority tyranny against those who fear unaccountable judicial legislating. Though each of the Justices is approximately equally likely to strike down legislation, the Justices dissenting in White display their counter-majoritarian tendencies in salient issue areas such as criminal procedure, which is often the predominant issue in judicial elections, and decisions upholding judicial-speech restrictions speak in glowing terms of the need for an independent judiciary that protects the unpopular. In contrast, the Justices in the White majority tend to strike down legislation about which few members of the public are aware, and decisions striking down judicial-speech restrictions often warn of the dangers posed by judges who use their independence to enact policy with which most people disagree.

By striking down a rule insulating judges from the public, White should make courts more accountable in salient issue areas – a result the Justices in the White majority welcome but which the dissenters discountenance. For many Justices, the First Amendment, it seems, is secondary.


Civil Rights and Discrimination | Constitutional Law | Courts | Judges | Jurisprudence | Law and Politics | Legal Ethics and Professional Responsibility | Legal Profession | Public Law and Legal Theory

Date of this Version

August 2005