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SCOTUS May Look at Judicial Political Speech Rights

SCOTUS May Look at Judicial Political Speech Rights

The far-right has marched its campaign to take over the judiciary right to the Supreme Court.  A group of state judges, judicial hopefuls and anti-abortion activists is asking the Roberts Court to weigh in on whether or not it is a violation of First Amendment speech rights to prevent judicial candidates from answering questionnaires seeking their positions on certain issues. 

These activists have filed not one, but two petitions for review on this issue arguing that judicial codes that prevent judges from disclosing their political opinions violate the First Amendment’s broad protections of political speech.  The cases are Bauer v. Shepard from Indiana and Siefert v. Alexander from Wisconsin.

Both cases press the issue of just what extent do we want our judges as active participants in the political process.  While many argue that judges are already politicians and campaign, only they do so for governors and presidents, those who ultimately make judicial appointments.  At the same time the judiciary is not, by it’s nature a lawmaking body, it is an interpretative body and one that must balance the political drives of both the executive and the legislative.  Judges are supposed to rise above the political fray and render decisions that will sometimes be unpopular, which means that in some ways they should be isolated from the kind of electoral accountability faced by Congress and the executive so as to remove the temptation to render decisions based on their personal professional fate rather than the dictates of law and reason.

However, given that judges are, at least on the state level in many places, on the ballots does create a need for some way to support an informed public when it comes time to cast a ballot.  And it is silly and naive to suggest that judges do not make political decisions or are not affected, in some way, by personal opinions or bias.  For our justice system to function properly we need a balance between accountabilty and detachment.  I’m just not so sure that opening up judicial campaigns to partisan stump speeches is the way to strike that balance.

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photo courtesy of KeithBurtis via Flickr

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17 comments

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10:39PM PDT on Oct 4, 2010

I don't trust the Roberts Court.

9:51AM PDT on Oct 4, 2010

There is something to be said for the idea that a judge is supposed to be unbiased. If they loose that illusion then will we see people migrate to be closer to judges who share their views?

5:10PM PDT on Oct 3, 2010

This is scary. If the extreme right takes over the Court then it can continue to take over the country and we'll be just like Germany under National Socialism. All we have to wait for is a kook to be "elected". Let's see who is in line ......CR?, SP?, CF?

11:49AM PDT on Oct 3, 2010

The Supreme Court is useless.

4:04AM PDT on Oct 3, 2010

Thanks for the article.

2:49AM PDT on Oct 3, 2010

You all said it very well - I can't say much more. Green Stars to ya!

11:55PM PDT on Oct 2, 2010

Judges impartial? What a joke! Take a look at the Supreme Court - five extreme rightists- and the last two Roberts & Alioto swore under oath that they would NOT let their personal prejudices influence their voting. Yet, they've done NOTHING BUT in EVERY case that came before them! What difference does it make what any potential judge says, when, once he/she is seated, they'll do whatever thay want? I think Roberts & Alioto should be impeaced for perjury! Their reasoning on the United case that declares a corporation a "person" defies all logic and is pure politics. I certainly hope that the corporation in Maryland that intended to run for office as a "person" continues to do so! What a hoot!

8:48PM PDT on Oct 2, 2010

I don't want to see judges selected for their political positions either. However, in case one holds strong positions which are not those of the law, it would be best if the overseeing body, whether it is the state or federal legislature, were to be able to ask about them. It should be noted that every time there is a new nominee for a position on the SCOTUS, the first question in government and the media is how it will affect the political balance of the bench.

Beyond that, judges and candidates are citizens and it is worth questioning whether the reasons for denying them the same rights as others are sufficient. Those reasons may be sufficient, particularly given the weight of precedent in the Common Law system, but that is for the experts on the issue, the judges to whom this question is being brought, to decide.

5:19PM PDT on Oct 2, 2010

The best evidence for political activism by the judiciary is the U.S. Supreme Court's determination that corporations, etc. may pump unlimited money into elections as "free speech." How expensive can political speech get? If that was solely "interpretive" behavior, I have a dry cave to sell you under the Mississippi River.

11:04AM PDT on Oct 2, 2010

If lawyers interrogate jurists for accountability, why can't the judges be held to the same standards of non prejudicial accountability. The first amendment only protects those who are free from knowingly making falsehoods and 'newsworthy' statements. In other words honest, unprejudiced, accountable judges. Germany fell to the Nazis because of prejudiced law.

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