Elections have remained an integral method of state
judicial appointments for over two centuries. However,
because the Founding Fathers imposed upon judges the
duty to neutrally uphold the U.S. and state constitutions,
state legislatures, per the recommendation of the ABA,
have imposed certain restrictions on the speech and
actions of judicial candidates to maintain impartiality. In
2002, the Supreme Court struck down one category of
these provisions in Republican Party of Minnesota v.
White. The Court declared Minnesota's announce clause,
which prohibited judicial candidates from voicing their
opinions on issues likely to come before the bench, to be an
unconstitutional First Amendment violation. The after-
effects of this decision have varied among the circuit
courts, particularly regarding the constitutionality of
endorsement clauses, which prohibit a judge or judicial
candidate from endorsing a political candidate. Since
White, lower courts have struggled in deciding whether to
apply the decision as precedent in cases challenging
endorsement clauses. By analyzing the history of judicial
elections, recounting the purposes and obligations of the
judiciary, and applying strict scrutiny, this Note concludes
that endorsement clauses do not violate the First
Amendment and should be upheld as constitutional, even
in a post-White legal system.
Portner, Shawna M.
"Endorsement Clauses in a Post-White Legal System: Why These Restrictions Do Not Violate a Judicial Candidate's First Amendment Right to Free Speech,"
Georgia Law Review: Vol. 46:
2, Article 7.
Available at: https://digitalcommons.law.uga.edu/glr/vol46/iss2/7