REPUBLICAN PARTY OF MINNESOTA et al. v. WHITE, CHAIRPERSON, MINNESOTA BOARD OF JUDICIAL STANDARDS, et al.

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Syllabus
REPUBLICAN PARTY OF MINNESOTA et al. v.
WHITE, CHAIRPERSON, MINNESOTA BOARD
OF JUDICIAL STANDARDS, et al.
certiorari to the united states court of appeals for
the eighth circuit
No. 01–521. Argued March 26, 2002—Decided June 27, 2002
The Minnesota Supreme Court has adopted a canon of judicial conduct
that prohibits a “candidate for a judicial office” from “announc[ing] his
or her views on disputed legal or political issues” (hereinafter announce
clause). While running for associate justice of that court, petitioner
Gregory Wersal (and others) filed this suit seeking a declaration that
the announce clause violates the First Amendment and an injunction
against its enforcement. The District Court granted respondent offi-
cials summary judgment, and the Eighth Circuit affirmed.
Held: The announce clause violates the First Amendment. Pp. 770–788.
(a) The record demonstrates that the announce clause prohibits a ju-
dicial candidate from stating his views on any specific nonfanciful legal
question within the province of the court for which he is running, except
in the context of discussing past decisions—and in the latter context
as well, if he expresses the view that he is not bound by stare decisis.
Pp. 770–774.
(b) The announce clause both prohibits speech based on its content
and burdens a category of speech that is at the core of First Amendment
freedoms—speech about the qualifications of candidates for public office.
The Eighth Circuit concluded, and the parties do not dispute, that the
proper test to be applied to determine the constitutionality of such a
restriction is strict scrutiny, under which respondents have the burden
to prove that the clause is (1) narrowly tailored, to serve (2) a compelling
state interest. E. g., Eu v. San Francisco County Democratic Central
Comm., 489 U. S. 214, 222. That court found that respondents had es-
tablished two interests as sufficiently compelling to justify the announce
clause: preserving the state judiciary’s impartiality and preserving the
appearance of that impartiality. Pp. 774–775.
(c) Under any definition of “impartiality,” the announce clause fails
strict scrutiny. First, it is plain that the clause is not narrowly tailored
to serve impartiality (or its appearance) in the traditional sense of the
word, i. e., as a lack of bias for or against either party to the proceeding.
Indeed, the clause is barely tailored to serve that interest at all, inas-
much as it does not restrict speech for or against particular parties,

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766 REPUBLICAN PARTY OF MINN. v. WHITE
Syllabus
but rather speech for or against particular issues. Second, although
“impartiality” in the sense of a lack of preconception in favor of or
against a particular legal view may well be an interest served by the
announce clause, pursuing this objective is not a compelling state inter-
est, since it is virtually impossible, and hardly desirable, to find a judge
who does not have preconceptions about the law, see Laird v. Tatum,
409 U. S. 824, 835. Third, the Court need not decide whether achieving
“impartiality” (or its appearance) in the sense of openmindedness is a
compelling state interest because, as a means of pursuing this interest,
the announce clause is so woefully underinclusive that the Court does
not believe it was adopted for that purpose. See, e. g., City of Ladue v.
Gilleo, 512 U. S. 43, 52–53. Respondents have not carried the burden
imposed by strict scrutiny of establishing that statements made during
an election campaign are uniquely destructive of openmindedness. See,
e. g., Landmark Communications, Inc. v. Virginia, 435 U. S. 829, 841.
Pp. 775–784.
(d) A universal and long-established tradition of prohibiting certain
conduct creates a strong presumption that the prohibition is constitu-
tional, see McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 375–377.
However, the practice of prohibiting speech by judicial candidates is
neither ancient nor universal. The Court knows of no such prohibitions
throughout the 19th and the first quarter of the 20th century, and they
are still not universally adopted. This does not compare well with the
traditions deemed worthy of attention in, e. g., Burson v. Freeman, 504
U. S. 191, 205–206. Pp. 785–787.
(e) There is an obvious tension between Minnesota’s Constitution,
which requires judicial elections, and the announce clause, which places
most subjects of interest to the voters off limits. The First Amend-
ment does not permit Minnesota to leave the principle of elections in
place while preventing candidates from discussing what the elections
are about. See, e. g., Renne v. Geary, 501 U. S. 312, 349. Pp. 787–788.
247 F. 3d 854, reversed and remanded.
Scalia, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O’Connor, Kennedy, and Thomas, JJ., joined. O’Connor, J.,
post, p. 788, and Kennedy, J., post, p. 792, filed concurring opinions. Ste-
vens, J., filed a dissenting opinion, in which Souter, Ginsburg, and
Breyer, JJ., joined, post, p. 797. Ginsburg, J., filed a dissenting opinion,
in which Stevens, Souter, and Breyer, JJ., joined, post, p. 803.
James Bopp, Jr., argued the cause for petitioners Republi-
can Party of Minnesota et al. With him on the briefs were

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Counsel
Thomas J. Marzen, Richard E. Coleson, and Ronald D. Ro-
tunda. William F. Mohrman and Erick G. Kaardal filed
briefs for petitioners Wersal et al.
Alan I. Gilbert, Chief Deputy and Solicitor General of
Minnesota, argued the cause for respondents. With him on
the brief were Mike Hatch, Attorney General, Kristine L.
Eiden, Deputy Attorney General, and Julie Ralston Aoki,
Mark B. Levinger, and Thomas C. Vasaly, Assistant Attor-
neys General.*
*Briefs of amici curiae urging reversal were filed for the American
Center for Law and Justice by Jay Alan Sekulow, James H. Henderson,
Sr., Colby M. May, and Walter M. Weber; for the American Civil Liberties
Union et al. by David B. Isbell, David H. Remes, and Steven R. Shapiro;
for the Chamber of Commerce of the United States by Jan Witold Baran
and Stephen A. Bokat; for Minnesota State Representative Philip Krinkie
et al. by Raymond C. Ortman, Jr.; for Public Citizen by Allison M. Zieve,
David C. Vladeck, and Scott L. Nelson; and for State Supreme Court Jus-
tices by Erik S. Jaffe.
Briefs of amici curiae urging affirmance were filed for the State of
California et al. by Bill Lockyer, Attorney General of California, and Man-
uel M. Medeiros, State Solicitor, and by the Attorneys General for their
respective States as follows: Janet Napolitano of Arizona, Jeremiah W.
(Jay) Nixon of Missouri, Mike McGrath of Montana, W. A. Drew Edmond-
son of Oklahoma, Hardy Myers of Oregon, John Cornyn of Texas, and
Christine O. Gregoire of Washington; for the Ad hoc Committee of Former
Justices and Friends Dedicated to an Independent Judiciary by S. Shawn
Stephens and Andy Taylor; for the American Bar Association by Robert
E. Hirshon, Reagan Wm. Simpson, and Warren S. Huang; for the Minne-
sota State Bar Association by Wayne D. Struble; for the Brennan Center
for Justice at NYU School of Law et al. by Scott Bales and Deborah Gold-
berg; for the Conference of Chief Justices by Roy A. Schotland, George T.
Patton, Jr., Sarah Steele Riordan, and Robert F. Bauer; for the Missouri
Bar by Joseph C. Blanton, Jr.; and for Pennsylvanians for Modern Courts
by Edmund B. Spaeth, Jr., and Brett G. Sweitzer.
Briefs of amici curiae were filed for the Idaho Conservation League
et al. by John D. Echeverria; and for the National Association of Criminal
Defense Lawyers by David W. Ogden, Jonathan J. Frankel, Neil M. Rich-
ards, and Lisa Kemler.

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768 REPUBLICAN PARTY OF MINN. v. WHITE
Opinion of the Court
Justice Scalia delivered the opinion of the Court.
The question presented in this case is whether the First
Amendment permits the Minnesota Supreme Court to pro-
hibit candidates for judicial election in that State from an-
nouncing their views on disputed legal and political issues.
I
Since Minnesota’s admission to the Union in 1858, the
State’s Constitution has provided for the selection of all state
judges by popular election. Minn. Const., Art. VI, § 7.
Since 1912, those elections have been nonpartisan. Act of
June 19, ch. 2, 1912 Minn. Laws Special Sess., pp. 4–6. Since
1974, they have been subject to a legal restriction which
states that a “candidate for a judicial office, including an
incumbent judge,” shall not “announce his or her views on
disputed legal or political issues.” Minn. Code of Judicial
Conduct, Canon 5(A)(3)(d)(i) (2000). This prohibition, pro-
mulgated by the Minnesota Supreme Court and based on
Canon 7(B) of the 1972 American Bar Association (ABA)
Model Code of Judicial Conduct, is known as the “announce
clause.” Incumbent judges who violate it are subject to
discipline, including removal, censure, civil penalties, and
suspension without pay. Minn. Rules of Board on Judicial
Standards 4(a)(6), 11(d) (2002). Lawyers who run for judi-
cial office also must comply with the announce clause. Minn.
Rule of Professional Conduct 8.2(b) (2002) (“A lawyer who is
a candidate for judicial office shall comply with the applicable
provisions of the Code of Judicial Conduct”). Those who vi-
olate it are subject to, inter alia, disbarment, suspension,
and probation. Rule 8.4(a); Minn. Rules on Lawyers Profes-
sional Responsibility 8–14, 15(a) (2002).
In 1996, one of the petitioners, Gregory Wersal, ran for
associate justice of the Minnesota Supreme Court. In the
course of the campaign, he distributed literature criticizing
several Minnesota Supreme Court decisions on issues such
as crime, welfare, and abortion. A complaint against Wersal

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challenging, among other things, the propriety of this litera-
ture was filed with the Office of Lawyers Professional Re-
sponsibility, the agency which, under the direction of the
Minnesota Lawyers Professional Responsibility Board,1 in-
vestigates and prosecutes ethical violations of lawyer candi-
dates for judicial office. The Lawyers Board dismissed the
complaint; with regard to the charges that his campaign
materials violated the announce clause, it expressed doubt
whether the clause could constitutionally be enforced.
Nonetheless, fearing that further ethical complaints would
jeopardize his ability to practice law, Wersal withdrew from
the election. In 1998, Wersal ran again for the same office.
Early in that race, he sought an advisory opinion from the
Lawyers Board with regard to whether it planned to enforce
the announce clause. The Lawyers Board responded equiv-
ocally, stating that, although it had significant doubts about
the constitutionality of the provision, it was unable to answer
his question because he had not submitted a list of the an-
nouncements he wished to make.2
Shortly thereafter, Wersal filed this lawsuit in Federal
District Court against respondents,3 seeking, inter alia, a
1 The Eighth Circuit did not parse out the separate functions of these
two entities in the case at hand, referring to the two of them collectively
as the “Lawyers Board.” We take the same approach.
2 Nor did Wersal have any success receiving answers from the Lawyers
Board when he included “concrete examples,” post, at 799, n. 2 (Stevens,
J., dissenting), in his request for an advisory opinion on other subjects a
month later:
“As you are well aware, there is pending litigation over the constitution-
ality of certain portions of Canon 5. You are a plaintiff in this action and
you have sued, among others, me as Director of the Office of Lawyers
Professional Responsibility and Charles Lundberg as the Chair of the
Board of Lawyers Professional Responsibility. Due to this pending litiga-
tion, I will not be answering your request for an advisory opinion at this
time.” App. 153.
3 Respondents are officers of the Lawyers Board and of the Minnesota
Board on Judicial Standards (Judicial Board), which enforces the ethical
rules applicable to judges.

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declaration that the announce clause violates the First
Amendment and an injunction against its enforcement.
Wersal alleged that he was forced to refrain from announcing
his views on disputed issues during the 1998 campaign, to
the point where he declined response to questions put to him
by the press and public, out of concern that he might run
afoul of the announce clause. Other plaintiffs in the suit,
including the Minnesota Republican Party, alleged that, be-
cause the clause kept Wersal from announcing his views,
they were unable to learn those views and support or oppose
his candidacy accordingly. The parties filed cross-motions
for summary judgment, and the District Court found in favor
of respondents, holding that the announce clause did not vio-
late the First Amendment. 63 F. Supp. 2d 967 (Minn. 1999).
Over a dissent by Judge Beam, the United States Court of
Appeals for the Eighth Circuit affirmed. Republican Party
of Minn. v. Kelly, 247 F. 3d 854 (2001). We granted certio-
rari. 534 U. S. 1054 (2001).
II
Before considering the constitutionality of the announce
clause, we must be clear about its meaning. Its text says
that a candidate for judicial office shall not “announce his or
her views on disputed legal or political issues.” Minn. Code
of Judicial Conduct, Canon 5(A)(3)(d)(i) (2002).
We know that “announc[ing] . . . views” on an issue covers
much more than promising to decide an issue a particular
way. The prohibition extends to the candidate’s mere state-
ment of his current position, even if he does not bind himself
to maintain that position after election. All the parties
agree this is the case, because the Minnesota Code contains
a so-called “pledges or promises” clause, which separately
prohibits judicial candidates from making “pledges or prom-
ises of conduct in office other than the faithful and impartial
performance of the duties of the office,” ibid.—a prohibition
that is not challenged here and on which we express no view.

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Opinion of the Court
There are, however, some limitations that the Minnesota
Supreme Court has placed upon the scope of the announce
clause that are not (to put it politely) immediately apparent
from its text. The statements that formed the basis of the
complaint against Wersal in 1996 included criticism of past
decisions of the Minnesota Supreme Court. One piece of
campaign literature stated that “[t]he Minnesota Supreme
Court has issued decisions which are marked by their disre-
gard for the Legislature and a lack of common sense.” App.
37. It went on to criticize a decision excluding from evi-
dence confessions by criminal defendants that were not
tape-recorded, asking “[s]hould we conclude that because the
Supreme Court does not trust police, it allows confessed
criminals to go free?” Ibid. It criticized a decision striking
down a state law restricting welfare benefits, asserting
that “[i]t’s the Legislature which should set our spend-
ing policies.” Ibid. And it criticized a decision requiring
public financing of abortions for poor women as “unprece-
dented” and a “pro-abortion stance.” Id., at 38. Although
one would think that all of these statements touched on dis-
puted legal or political issues, they did not (or at least do
not now) fall within the scope of the announce clause. The
Judicial Board issued an opinion stating that judicial candi-
dates may criticize past decisions, and the Lawyers Board
refused to discipline Wersal for the foregoing statements be-
cause, in part, it thought they did not violate the announce
clause. The Eighth Circuit relied on the Judicial Board’s
opinion in upholding the announce clause, 247 F. 3d, at 882,
and the Minnesota Supreme Court recently embraced the
Eighth Circuit’s interpretation, In re Code of Judicial Con-
duct, 639 N. W. 2d 55 (2002).
There are yet further limitations upon the apparent plain
meaning of the announce clause: In light of the constitutional
concerns, the District Court construed the clause to reach
only disputed issues that are likely to come before the candi-
date if he is elected judge. 63 F. Supp. 2d, at 986. The

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Eighth Circuit accepted this limiting interpretation by the
District Court, and in addition construed the clause to allow
general discussions of case law and judicial philosophy. 247
F. 3d, at 881–882. The Supreme Court of Minnesota adopted
these interpretations as well when it ordered enforcement of
the announce clause in accordance with the Eighth Circuit’s
opinion. In re Code of Judicial Conduct, supra.
It seems to us, however, that—like the text of the an-
nounce clause itself—these limitations upon the text of the
announce clause are not all that they appear to be. First,
respondents acknowledged at oral argument that statements
critical of past judicial decisions are not permissible if the
candidate also states that he is against stare decisis. Tr. of
Oral Arg. 33–34.4 Thus, candidates must choose between
stating their views critical of past decisions and stating their
views in opposition to stare decisis. Or, to look at it more
concretely, they may state their view that prior decisions
were erroneous only if they do not assert that they, if
elected, have any power to eliminate erroneous decisions.
Second, limiting the scope of the clause to issues likely to
come before a court is not much of a limitation at all. One
would hardly expect the “disputed legal or political issues”
raised in the course of a state judicial election to include such
matters as whether the Federal Government should end the
embargo of Cuba. Quite obviously, they will be those legal
or political disputes that are the proper (or by past decisions
have been made the improper) business of the state courts.
And within that relevant category, “[t]here is almost no legal
or political issue that is unlikely to come before a judge of
an American court, state or federal, of general jurisdiction.”
4 Justice Ginsburg argues that we should ignore this concession at
oral argument because it is inconsistent with the Eighth Circuit’s interpre-
tation of the announce clause. Post, at 810 (dissenting opinion). As she
appears to acknowledge, however, the Eighth Circuit was merely silent on
this particular question. Ibid. Silence is hardly inconsistent with what
respondents conceded at oral argument.

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Opinion of the Court
Buckley v. Illinois Judicial Inquiry Bd., 997 F. 2d 224, 229
(CA7 1993). Third, construing the clause to allow “general”
discussions of case law and judicial philosophy turns out to
be of little help in an election campaign. At oral argument,
respondents gave, as an example of this exception, that a
candidate is free to assert that he is a “ ‘strict construction-
ist.’ ” Tr. of Oral Arg. 29. But that, like most other philo-
sophical generalities, has little meaningful content for the
electorate unless it is exemplified by application to a particu-
lar issue of construction likely to come before a court—for
example, whether a particular statute runs afoul of any pro-
vision of the Constitution. Respondents conceded that the
announce clause would prohibit the candidate from exempli-
fying his philosophy in this fashion. Id., at 43. Without
such application to real-life issues, all candidates can claim
to be “strict constructionists” with equal (and unhelpful)
plausibility.
In any event, it is clear that the announce clause prohibits
a judicial candidate from stating his views on any specific
nonfanciful legal question within the province of the court
for which he is running, except in the context of discussing
past decisions—and in the latter context as well, if he ex-
presses the view that he is not bound by stare decisis.5
5 In 1990, in response to concerns that its 1972 Model Canon—which was
the basis for Minnesota’s announce clause—violated the First Amendment,
see L. Milord, The Development of the ABA Judicial Code 50 (1992), the
ABA replaced that canon with a provision that prohibits a judicial can-
didate from making “statements that commit or appear to commit the
candidate with respect to cases, controversies or issues that are likely to
come before the court.” ABA Model Code of Judicial Conduct, Canon
5(A)(3)(d)(ii) (2000). At oral argument, respondents argued that the limit-
ing constructions placed upon Minnesota’s announce clause by the Eighth
Circuit, and adopted by the Minnesota Supreme Court, render the scope
of the clause no broader than the ABA’s 1990 canon. Tr. of Oral Arg. 38.
This argument is somewhat curious because, based on the same constitu-
tional concerns that had motivated the ABA, the Minnesota Supreme
Court was urged to replace the announce clause with the new ABA lan-
guage, but, unlike other jurisdictions, declined. Final Report of the Advi-

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Opinion of the Court
Respondents contend that this still leaves plenty of topics
for discussion on the campaign trail. These include a candi-
date’s “character,” “education,” “work habits,” and “how [he]
would handle administrative duties if elected.” Brief for
Respondents 35–36. Indeed, the Judicial Board has printed
a list of preapproved questions which judicial candidates are
allowed to answer. These include how the candidate feels
about cameras in the courtroom, how he would go about re-
ducing the caseload, how the costs of judicial administration
can be reduced, and how he proposes to ensure that minori-
ties and women are treated more fairly by the court system.
Minnesota State Bar Association Judicial Elections Task
Force Report & Recommendations, App. C (June 19, 1997),
reprinted at App. 97–103. Whether this list of preapproved
subjects, and other topics not prohibited by the announce
clause, adequately fulfill the First Amendment’s guarantee
of freedom of speech is the question to which we now turn.
III
As the Court of Appeals recognized, the announce clause
both prohibits speech on the basis of its content and burdens
a category of speech that is “at the core of our First Amend-
ment freedoms”—speech about the qualifications of candi-
dates for public office. 247 F. 3d, at 861, 863. The Court
of Appeals concluded that the proper test to be applied to
determine the constitutionality of such a restriction is what
our cases have called strict scrutiny, id., at 864; the parties
do not dispute that this is correct. Under the strict-scrutiny
test, respondents have the burden to prove that the an-
sory Committee to Review the ABA Model Code of Judicial Conduct and
the Rules of the Minnesota Board on Judicial Standards 5–6 (June 29,
1994), reprinted at App. 367–368. The ABA, however, agrees with re-
spondents’ position, Brief for ABA as Amicus Curiae 5. We do not know
whether the announce clause (as interpreted by state authorities) and the
1990 ABA canon are one and the same. No aspect of our constitutional
analysis turns on this question.

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Opinion of the Court
nounce clause is (1) narrowly tailored, to serve (2) a compel-
ling state interest. E. g., Eu v. San Francisco County Dem-
ocratic Central Comm., 489 U. S. 214, 222 (1989). In order
for respondents to show that the announce clause is narrowly
tailored, they must demonstrate that it does not “unneces-
sarily circumscrib[e] protected expression.” Brown v. Hart-
lage, 456 U. S. 45, 54 (1982).
The Court of Appeals concluded that respondents had es-
tablished two interests as sufficiently compelling to justify
the announce clause: preserving the impartiality of the state
judiciary and preserving the appearance of the impartiality
of the state judiciary. 247 F. 3d, at 867. Respondents reas-
sert these two interests before us, arguing that the first is
compelling because it protects the due process rights of liti-
gants, and that the second is compelling because it preserves
public confidence in the judiciary.6 Respondents are rather
vague, however, about what they mean by “impartiality.”
Indeed, although the term is used throughout the Eighth
Circuit’s opinion, the briefs, the Minnesota Code of Judicial
Conduct, and the ABA Codes of Judicial Conduct, none of
these sources bothers to define it. Clarity on this point is
essential before we can decide whether impartiality is indeed
a compelling state interest, and, if so, whether the announce
clause is narrowly tailored to achieve it.
A
One meaning of “impartiality” in the judicial context—and
of course its root meaning—is the lack of bias for or against
either party to the proceeding. Impartiality in this sense
6 Although the Eighth Circuit also referred to the compelling interest in
an “independent” judiciary, 247 F. 3d, at 864–868, both it and respond-
ents appear to use that term, as applied to the issues involved in this case,
as interchangeable with “impartial.” See id., at 864 (describing a
judge’s independence as his “ability to apply the law neutrally”); Brief
for Respondents 20, n. 4 (“[J]udicial impartiality is linked to judicial
independence”).

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assures equal application of the law. That is, it guarantees
a party that the judge who hears his case will apply the law
to him in the same way he applies it to any other party.
This is the traditional sense in which the term is used. See
Webster’s New International Dictionary 1247 (2d ed. 1950)
(defining “impartial” as “[n]ot partial; esp., not favoring one
more than another; treating all alike; unbiased; equitable;
fair; just”). It is also the sense in which it is used in the
cases cited by respondents and amici for the proposition that
an impartial judge is essential to due process. Tumey v.
Ohio, 273 U. S. 510, 523, 531–534 (1927) ( judge violated due
process by sitting in a case in which it would be in his finan-
cial interest to find against one of the parties); Aetna Life
Ins. Co. v. Lavoie, 475 U. S. 813, 822–825 (1986) (same); Ward
v. Monroeville, 409 U. S. 57, 58–62 (1972) (same); Johnson v.
Mississippi, 403 U. S. 212, 215–216 (1971) (per curiam)
( judge violated due process by sitting in a case in which one
of the parties was a previously successful litigant against
him); Bracy v. Gramley, 520 U. S. 899, 905 (1997) (would vio-
late due process if a judge was disposed to rule against de-
fendants who did not bribe him in order to cover up the fact
that he regularly ruled in favor of defendants who did bribe
him); In re Murchison, 349 U. S. 133, 137–139 (1955) ( judge
violated due process by sitting in the criminal trial of defend-
ant whom he had indicted).
We think it plain that the announce clause is not narrowly
tailored to serve impartiality (or the appearance of impartial-
ity) in this sense. Indeed, the clause is barely tailored to
serve that interest at all, inasmuch as it does not restrict
speech for or against particular parties, but rather speech
for or against particular issues. To be sure, when a case
arises that turns on a legal issue on which the judge (as a
candidate) had taken a particular stand, the party taking the
opposite stand is likely to lose. But not because of any bias
against that party, or favoritism toward the other party.

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Any party taking that position is just as likely to lose. The
judge is applying the law (as he sees it) evenhandedly.7
B
It is perhaps possible to use the term “impartiality” in the
judicial context (though this is certainly not a common usage)
to mean lack of preconception in favor of or against a particu-
lar legal view. This sort of impartiality would be concerned,
not with guaranteeing litigants equal application of the law,
but rather with guaranteeing them an equal chance to per-
suade the court on the legal points in their case. Impartial-
ity in this sense may well be an interest served by the an-
nounce clause, but it is not a compelling state interest, as
strict scrutiny requires. A judge’s lack of predisposition re-
garding the relevant legal issues in a case has never been
thought a necessary component of equal justice, and with
good reason. For one thing, it is virtually impossible to find
a judge who does not have preconceptions about the law. As
then-Justice Rehnquist observed of our own Court: “Since
most Justices come to this bench no earlier than their middle
years, it would be unusual if they had not by that time for-
mulated at least some tentative notions that would influence
them in their interpretation of the sweeping clauses of the
Constitution and their interaction with one another. It
would be not merely unusual, but extraordinary, if they had
7 Justice Stevens asserts that the announce clause “serves the State’s
interest in maintaining both the appearance of this form of impartiality
and its actuality.” Post, at 801. We do not disagree. Some of the
speech prohibited by the announce clause may well exhibit a bias against
parties—including Justice Stevens’s example of an election speech
stressing the candidate’s unbroken record of affirming convictions for rape,
ante, at 800–801. That is why we are careful to say that the announce
clause is “barely tailored to serve that interest,” supra, at 776 (emphasis
added). The question under our strict scrutiny test, however, is not
whether the announce clause serves this interest at all, but whether it is
narrowly tailored to serve this interest. It is not.

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not at least given opinions as to constitutional issues in their
previous legal careers.” Laird v. Tatum, 409 U. S. 824, 835
(1972) (memorandum opinion). Indeed, even if it were possi-
ble to select judges who did not have preconceived views on
legal issues, it would hardly be desirable to do so. “Proof
that a Justice’s mind at the time he joined the Court was a
complete tabula rasa in the area of constitutional adjudica-
tion would be evidence of lack of qualification, not lack of
bias.” Ibid. The Minnesota Constitution positively forbids
the selection to courts of general jurisdiction of judges who
are impartial in the sense of having no views on the law.
Minn. Const., Art. VI, § 5 (“Judges of the supreme court, the
court of appeals and the district court shall be learned in the
law”). And since avoiding judicial preconceptions on legal
issues is neither possible nor desirable, pretending otherwise
by attempting to preserve the “appearance” of that type of
impartiality can hardly be a compelling state interest either.
C
A third possible meaning of “impartiality” (again not a
common one) might be described as openmindedness. This
quality in a judge demands, not that he have no preconcep-
tions on legal issues, but that he be willing to consider views
that oppose his preconceptions, and remain open to persua-
sion, when the issues arise in a pending case. This sort of
impartiality seeks to guarantee each litigant, not an equal
chance to win the legal points in the case, but at least some
chance of doing so. It may well be that impartiality in this
sense, and the appearance of it, are desirable in the judiciary,
but we need not pursue that inquiry, since we do not believe
the Minnesota Supreme Court adopted the announce clause
for that purpose.
Respondents argue that the announce clause serves the
interest in openmindedness, or at least in the appearance of
openmindedness, because it relieves a judge from pressure
to rule a certain way in order to maintain consistency with

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statements the judge has previously made. The problem is,
however, that statements in election campaigns are such an
infinitesimal portion of the public commitments to legal posi-
tions that judges (or judges-to-be) undertake, that this object
of the prohibition is implausible. Before they arrive on the
bench (whether by election or otherwise) judges have often
committed themselves on legal issues that they must later
rule upon. See, e. g., Laird, supra, at 831–833 (describing
Justice Black’s participation in several cases construing and
deciding the constitutionality of the Fair Labor Standards
Act, even though as a Senator he had been one of its principal
authors; and Chief Justice Hughes’s authorship of the opinion
overruling Adkins v. Children’s Hospital of D. C., 261 U. S.
525 (1923), a case he had criticized in a book written before
his appointment to the Court). More common still is a
judge’s confronting a legal issue on which he has expressed
an opinion while on the bench. Most frequently, of course,
that prior expression will have occurred in ruling on an ear-
lier case. But judges often state their views on disputed
legal issues outside the context of adjudication—in classes
that they conduct, and in books and speeches. Like the
ABA Codes of Judicial Conduct, the Minnesota Code not only
permits but encourages this. See Minn. Code of Judicial
Conduct, Canon 4(B) (2002) (“A judge may write, lecture,
teach, speak and participate in other extra-judicial activities
concerning the law . . .”); Minn. Code of Judicial Conduct,
Canon 4(B), Comment. (2002) (“To the extent that time per-
mits, a judge is encouraged to do so . . .”). That is quite
incompatible with the notion that the need for openminded-
ness (or for the appearance of openmindedness) lies behind
the prohibition at issue here.
The short of the matter is this: In Minnesota, a candidate
for judicial office may not say “I think it is constitutional for
the legislature to prohibit same-sex marriages.” He may
say the very same thing, however, up until the very day be-
fore he declares himself a candidate, and may say it repeat-

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edly (until litigation is pending) after he is elected. As a
means of pursuing the objective of openmindedness that re-
spondents now articulate, the announce clause is so woefully
underinclusive as to render belief in that purpose a challenge
to the credulous. See City of Ladue v. Gilleo, 512 U. S. 43,
52–53 (1994) (noting that underinclusiveness “diminish[es]
the credibility of the government’s rationale for restricting
speech”); Florida Star v. B. J. F., 491 U. S. 524, 541–542
(1989) (Scalia, J., concurring in judgment) (“[A] law cannot
be regarded as protecting an interest of the highest order,
and thus as justifying a restriction upon truthful speech,
when it leaves appreciable damage to that supposedly vital
interest unprohibited” (internal quotation marks and cita-
tion omitted)).
Justice Stevens asserts that statements made in an elec-
tion campaign pose a special threat to openmindedness be-
cause the candidate, when elected judge, will have a particu-
lar reluctance to contradict them. Post, at 801. That
might be plausible, perhaps, with regard to campaign prom-
ises. A candidate who says “If elected, I will vote to uphold
the legislature’s power to prohibit same-sex marriages” will
positively be breaking his word if he does not do so (although
one would be naive not to recognize that campaign promises
are—by long democratic tradition—the least binding form of
human commitment). But, as noted earlier, the Minnesota
Supreme Court has adopted a separate prohibition on cam-
paign “pledges or promises,” which is not challenged here.
The proposition that judges feel significantly greater compul-
sion, or appear to feel significantly greater compulsion, to
maintain consistency with nonpromissory statements made
during a judicial campaign than with such statements made
before or after the campaign is not self-evidently true. It
seems to us quite likely, in fact, that in many cases the oppo-
site is true. We doubt, for example, that a mere statement
of position enunciated during the pendency of an election will
be regarded by a judge as more binding—or as more likely

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to subject him to popular disfavor if reconsidered—than a
carefully considered holding that the judge set forth in
an earlier opinion denying some individual’s claim to jus-
tice. In any event, it suffices to say that respondents
have not carried the burden imposed by our strict-scrutiny
test to establish this proposition (that campaign statements
are uniquely destructive of openmindedness) on which the
validity of the announce clause rests. See, e. g., Landmark
Communications, Inc. v. Virginia, 435 U. S. 829, 841 (1978)
(rejecting speech restriction subject to strict scrutiny where
the State “offered little more than assertion and conjecture
to support its claim that without criminal sanctions the ob-
jectives of the statutory scheme would be seriously under-
mined”); United States v. Playboy Entertainment Group,
Inc., 529 U. S. 803, 816–825 (2000) (same).8
Moreover, the notion that the special context of election-
eering justifies an abridgment of the right to speak out on
disputed issues sets our First Amendment jurisprudence on
its head. “[D]ebate on the qualifications of candidates” is
“at the core of our electoral process and of the First Amend-
ment freedoms,” not at the edges. Eu, 489 U. S., at 222–223
(internal quotation marks omitted). “The role that elected
officials play in our society makes it all the more imperative
that they be allowed freely to express themselves on matters
8 We do not agree with Justice Stevens’s broad assertion that “to the
extent that [statements on legal issues] seek to enhance the popularity of
the candidate by indicating how he would rule in specific cases if elected,
they evidence a lack of fitness for office.” Post, at 798 (emphasis added).
Of course all statements on real-world legal issues “indicate” how the
speaker would rule “in specific cases.” And if making such statements
(of honestly held views) with the hope of enhancing one’s chances with
the electorate displayed a lack of fitness for office, so would similarly moti-
vated honest statements of judicial candidates made with the hope of en-
hancing their chances of confirmation by the Senate, or indeed of appoint-
ment by the President. Since such statements are made, we think, in
every confirmation hearing, Justice Stevens must contemplate a federal
bench filled with the unfit.

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of current public importance.” Wood v. Georgia, 370 U. S.
375, 395 (1962). “It is simply not the function of government
to select which issues are worth discussing or debating in
the course of a political campaign.” Brown, 456 U. S., at 60
(internal quotation marks and citation omitted). We have
never allowed the government to prohibit candidates from
communicating relevant information to voters during an
election.
Justice Ginsburg would do so—and much of her dissent
confirms rather than refutes our conclusion that the purpose
behind the announce clause is not openmindedness in the ju-
diciary, but the undermining of judicial elections. She con-
tends that the announce clause must be constitutional be-
cause due process would be denied if an elected judge sat in
a case involving an issue on which he had previously an-
nounced his view. Post, at 816, 819. She reaches this
conclusion because, she says, such a judge would have a “di-
rect, personal, substantial, and pecuniary interest” in ruling
consistently with his previously announced view, in order to
reduce the risk that he will be “voted off the bench and
thereby lose [his] salary and emoluments,” post, at 816 (inter-
nal quotation marks and alterations omitted). But elected
judges—regardless of whether they have announced any
views beforehand—always face the pressure of an electorate
who might disagree with their rulings and therefore vote
them off the bench. Surely the judge who frees Timothy
McVeigh places his job much more at risk than the judge
who (horror of horrors!) reconsiders his previously an-
nounced view on a disputed legal issue. So if, as Justice
Ginsburg claims, it violates due process for a judge to sit
in a case in which ruling one way rather than another in-
creases his prospects for reelection, then—quite simply—the
practice of electing judges is itself a violation of due process.
It is not difficult to understand how one with these views
would approve the election-nullifying effect of the announce

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clause.9 They are not, however, the views reflected in the
Due Process Clause of the Fourteenth Amendment, which
has coexisted with the election of judges ever since it was
adopted, see infra, at 785–786.
Justice Ginsburg devotes the rest of her dissent to at-
tacking arguments we do not make. For example, despite
the number of pages she dedicates to disproving this proposi-
tion, post, at 805–809, we neither assert nor imply that the
First Amendment requires campaigns for judicial office to
sound the same as those for legislative office.10 What we do
assert, and what Justice Ginsburg ignores, is that, even if
the First Amendment allows greater regulation of judicial
election campaigns than legislative election campaigns, the
announce clause still fails strict scrutiny because it is woe-
fully underinclusive, prohibiting announcements by judges
(and would-be judges) only at certain times and in certain
forms. We rely on the cases involving speech during elec-
tions, supra, at 781–782, only to make the obvious point that
this underinclusiveness cannot be explained by resort to the
notion that the First Amendment provides less protection
during an election campaign than at other times.11
9 Justice Ginsburg argues that the announce clause is not election nul-
lifying because Wersal criticized past decisions of the Minnesota Supreme
Court in his campaign literature and the Lawyers Board decided not to
discipline him for doing so. Post, at 811–812. As we have explained,
however, had Wersal additionally stated during his campaign that he did
not feel bound to follow those erroneous decisions, he would not have been
so lucky. Supra, at 772–773. This predicament hardly reflects “the ro-
bust communication of ideas and views from judicial candidate to voter.”
Post, at 812.
10 Justice Stevens devotes most of his dissent to this same argument
that we do not make.
11 Nor do we assert that candidates for judicial office should be com-
pelled to announce their views on disputed legal issues. Thus, Justice
Ginsburg’s repeated invocation of instances in which nominees to this
Court declined to announce such views during Senate confirmation hear-
ings is pointless. Post, at 807–808, n. 1, 818–819, n. 4. That the practice

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But in any case, Justice Ginsburg greatly exaggerates
the difference between judicial and legislative elections.
She asserts that “the rationale underlying unconstrained
speech in elections for political office—that representative
government depends on the public’s ability to choose agents
who will act at its behest—does not carry over to campaigns
for the bench.” Post, at 806. This complete separation of
the judiciary from the enterprise of “representative govern-
ment” might have some truth in those countries where
judges neither make law themselves nor set aside the laws
enacted by the legislature. It is not a true picture of the
American system. Not only do state-court judges possess
the power to “make” common law, but they have the im-
mense power to shape the States’ constitutions as well. See,
e. g., Baker v. State, 170 Vt. 194, 744 A. 2d 864 (1999). Which
is precisely why the election of state judges became
popular.12
of voluntarily demurring does not establish the legitimacy of legal com-
pulsion to demur is amply demonstrated by the unredacted text of the
sentence she quotes in part, post, at 819, from Laird v. Tatum, 409 U. S.
824, 836, n. 5 (1972): “In terms of propriety, rather than disqualification,
I would distinguish quite sharply between a public statement made prior
to nomination for the bench, on the one hand, and a public statement made
by a nominee to the bench.” (Emphasis added.)
12 Although Justice Stevens at times appears to agree with Justice
Ginsburg’s premise that the judiciary is completely separated from the
enterprise of representative government, post, at 798 (“[E]very good
judge is fully aware of the distinction between the law and a personal
point of view”), he eventually appears to concede that the separation does
not hold true for many judges who sit on courts of last resort, ante, at 799
(“If he is not a judge on the highest court in the State, he has an obligation
to follow the precedent of that court, not his personal views or public
opinion polls”); post, at 799, n. 2. Even if the policymaking capacity of
judges were limited to courts of last resort, that would only prove that
the announce clause fails strict scrutiny. “[I]f announcing one’s views in
the context of a campaign for the State Supreme Court might be” pro-
tected speech, ibid., then—even if announcing one’s views in the context
of a campaign for a lower court were not protected speech, ibid.—the
announce clause would not be narrowly tailored, since it applies to high-

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IV
To sustain the announce clause, the Eighth Circuit relied
heavily on the fact that a pervasive practice of prohibiting
judicial candidates from discussing disputed legal and politi-
cal issues developed during the last half of the 20th century.
247 F. 3d, at 879–880. It is true that a “universal and long-
established” tradition of prohibiting certain conduct creates
“a strong presumption” that the prohibition is constitutional:
“Principles of liberty fundamental enough to have been em-
bodied within constitutional guarantees are not readily
erased from the Nation’s consciousness.” McIntyre v. Ohio
Elections Comm’n, 514 U. S. 334, 375–377 (1995) (Scalia, J.,
dissenting). The practice of prohibiting speech by judicial
candidates on disputed issues, however, is neither long nor
universal.
At the time of the founding, only Vermont (before it be-
came a State) selected any of its judges by election. Start-
ing with Georgia in 1812, States began to provide for judicial
election, a development rapidly accelerated by Jacksonian
democracy. By the time of the Civil War, the great majority
of States elected their judges. E. Haynes, Selection and
Tenure of Judges 99–135 (1944); Berkson, Judicial Selection
in the United States: A Special Report, 64 Judicature 176
(1980). We know of no restrictions upon statements that
could be made by judicial candidates (including judges)
throughout the 19th and the first quarter of the 20th century.
Indeed, judicial elections were generally partisan during
this period, the movement toward nonpartisan judicial elec-
tions not even beginning until the 1870’s. Id., at 176–177;
and low-court candidates alike. In fact, however, the judges of inferior
courts often “make law,” since the precedent of the highest court does not
cover every situation, and not every case is reviewed. Justice Stevens
has repeatedly expressed the view that a settled course of lower court
opinions binds the highest court. See, e. g., Reves v. Ernst & Young, 494
U. S. 56, 74 (1990) (concurring opinion); McNally v. United States, 483 U. S.
350, 376–377 (1987) (dissenting opinion).

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M. Comisky & P. Patterson, The Judiciary—Selection, Com-
pensation, Ethics, and Discipline 4, 7 (1987). Thus, not only
were judicial candidates (including judges) discussing dis-
puted legal and political issues on the campaign trail, but
they were touting party affiliations and angling for party
nominations all the while.
The first code regulating judicial conduct was adopted by
the ABA in 1924. 48 ABA Reports 74 (1923) (report of
Chief Justice Taft); P. McFadden, Electing Justice: The Law
and Ethics of Judicial Election Campaigns 86 (1990). It con-
tained a provision akin to the announce clause: “A candidate
for judicial position . . . should not announce in advance his
conclusions of law on disputed issues to secure class
support . . . .” ABA Canon of Judicial Ethics 30 (1924).
The States were slow to adopt the canons, however. “By
the end of World War II, the canons . . . were binding by the
bar associations or supreme courts of only eleven states.”
J. MacKenzie, The Appearance of Justice 191 (1974). Even
today, although a majority of States have adopted either the
announce clause or its 1990 ABA successor, adoption is not
unanimous. Of the 31 States that select some or all of their
appellate and general-jurisdiction judges by election, see
American Judicature Society, Judicial Selection in the States:
Appellate and General Jurisdiction Courts (Apr. 2002), 4
have adopted no candidate-speech restriction comparable to
the announce clause,13 and 1 prohibits only the discussion of
“pending litigation.” 14 This practice, relatively new to judi-
cial elections and still not universally adopted, does not com-
pare well with the traditions deemed worthy of our attention
in prior cases. E. g., Burson v. Freeman, 504 U. S. 191, 205–
206 (1992) (crediting tradition of prohibiting speech around
13 Idaho Code of Judicial Conduct, Canon 7 (2001); Mich. Code of Judicial
Conduct, Canon 7 (2002); N. C. Code of Judicial Conduct, Canon 7 (2001);
Ore. Code of Judicial Conduct, Rule 4–102 (2002). All of these States save
Idaho have adopted the pledges or promises clause.
14 Ala. Canon of Judicial Ethics 7(B)(1)(c) (2002).

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polling places that began with the very adoption of the se-
cret ballot in the late 19th century, and in which every State
participated); id., at 214–216 (Scalia, J., concurring in
judgment) (same); McIntyre, supra, at 375–377 (Scalia, J.,
dissenting) (crediting tradition of prohibiting anonymous
election literature, which again began in 1890 and was uni-
versally adopted).
* * *
There is an obvious tension between the article of Minne-
sota’s popularly approved Constitution which provides that
judges shall be elected, and the Minnesota Supreme Court’s
announce clause which places most subjects of interest to the
voters off limits. (The candidate-speech restrictions of all
the other States that have them are also the product of judi-
cial fiat.15 ) The disparity is perhaps unsurprising, since the
ABA, which originated the announce clause, has long been
an opponent of judicial elections. See ABA Model Code of
Judicial Conduct, Canon 5(C)(2), Comment (2000) (“[M]erit
selection of judges is a preferable manner in which to select
the judiciary”); An Independent Judiciary: Report of the
ABA Commission on Separation of Powers and Judicial Inde-
pendence 96 (1997) (“The American Bar Association strongly
endorses the merit selection of judges, as opposed to their
election . . . . Five times between August 1972 and August
1984 the House of Delegates has approved recommendations
stating the preference for merit selection and encouraging
bar associations in jurisdictions where judges are elected . . .
to work for the adoption of merit selection and retention”).
That opposition may be well taken (it certainly had the sup-
15 These restrictions are all contained in these States’ codes of judicial
conduct, App. to Brief for ABA as Amicus Curiae. “In every state, the
highest court promulgates the Code of Judicial Conduct, either by express
constitutional provision, statutory authorization, broad constitutional
grant, or inherent power.” In the Supreme Court of Texas: Per Curiam
Opinion Concerning Amendments to Canons 5 and 6 of the Code of Judicial
Conduct, 61 Tex. B. J. 64, 66 (1998) (collecting provisions).

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port of the Founders of the Federal Government), but the
First Amendment does not permit it to achieve its goal by
leaving the principle of elections in place while preventing
candidates from discussing what the elections are about.
“[T]he greater power to dispense with elections altogether
does not include the lesser power to conduct elections under
conditions of state-imposed voter ignorance. If the State
chooses to tap the energy and the legitimizing power of the
democratic process, it must accord the participants in that
process . . . the First Amendment rights that attach to their
roles.” Renne v. Geary, 501 U. S. 312, 349 (1991) (Marshall,
J., dissenting); accord, Meyer v. Grant, 486 U. S. 414, 424–
425 (1988) (rejecting argument that the greater power to
end voter initiatives includes the lesser power to prohibit
paid petition-circulators).
The Minnesota Supreme Court’s canon of judicial conduct
prohibiting candidates for judicial election from announcing
their views on disputed legal and political issues violates the
First Amendment. Accordingly, we reverse the grant of
summary judgment to respondents and remand the case for
proceedings consistent with this opinion.
It is so ordered.
Justice O’Connor, concurring.
I join the opinion of the Court but write separately to ex-
press my concerns about judicial elections generally. Re-
spondents claim that “[t]he Announce Clause is necessary . . .
to protect the State’s compelling governmental interes[t] in
an actual and perceived . . . impartial judiciary.” Brief for
Respondents 8. I am concerned that, even aside from what
judicial candidates may say while campaigning, the very
practice of electing judges undermines this interest.
We of course want judges to be impartial, in the sense of
being free from any personal stake in the outcome of the
cases to which they are assigned. But if judges are subject
to regular elections they are likely to feel that they have at

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least some personal stake in the outcome of every publicized
case. Elected judges cannot help being aware that if the
public is not satisfied with the outcome of a particular case,
it could hurt their reelection prospects. See Eule, Croco-
diles in the Bathtub: State Courts, Voter Initiatives and the
Threat of Electoral Reprisal, 65 U. Colo. L. Rev. 733, 739
(1994) (quoting former California Supreme Court Justice
Otto Kaus’ statement that ignoring the political conse-
quences of visible decisions is “ ‘like ignoring a crocodile in
your bathtub’ ”); Bright & Keenan, Judges and the Politics of
Death: Deciding Between the Bill of Rights and the Next
Election in Capital Cases, 75 B. U. L. Rev. 759, 793–794
(1995) (citing statistics indicating that judges who face elec-
tions are far more likely to override jury sentences of life
without parole and impose the death penalty than are judges
who do not run for election). Even if judges were able to
suppress their awareness of the potential electoral conse-
quences of their decisions and refrain from acting on it, the
public’s confidence in the judiciary could be undermined sim-
ply by the possibility that judges would be unable to do so.
Moreover, contested elections generally entail campaign-
ing. And campaigning for a judicial post today can require
substantial funds. See Schotland, Financing Judicial Elec-
tions, 2000: Change and Challenge, 2001 L. Rev. Mich. State
U. Detroit College of Law 849, 866 (reporting that in 2000,
the 13 candidates in a partisan election for 5 seats on the
Alabama Supreme Court spent an average of $1,092,076 on
their campaigns); American Bar Association, Report and
Recommendations of the Task Force on Lawyers’ Political
Contributions, pt. 2 (July 1998) (reporting that in 1995, one
candidate for the Pennsylvania Supreme Court raised
$1,848,142 in campaign funds, and that in 1986, $2,700,000
was spent on the race for Chief Justice of the Ohio Supreme
Court). Unless the pool of judicial candidates is limited to
those wealthy enough to independently fund their cam-
paigns, a limitation unrelated to judicial skill, the cost of

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campaigning requires judicial candidates to engage in fund-
raising. Yet relying on campaign donations may leave
judges feeling indebted to certain parties or interest groups.
See Thomas, National L. J., Mar. 16, 1998, p. A8, col. 1
(reporting that a study by the public interest group Texans
for Public Justice found that 40 percent of the $9,200,000
in contributions of $100 or more raised by seven of Texas’
nine Supreme Court justices for their 1994 and 1996 elec-
tions “came from parties and lawyers with cases before
the court or contributors closely linked to these parties”).
Even if judges were able to refrain from favoring donors,
the mere possibility that judges’ decisions may be motivated
by the desire to repay campaign contributors is likely to
undermine the public’s confidence in the judiciary. See
Greenberg Quinlan Rosner Research, Inc., and American
Viewpoint, National Public Opinion Survey Frequency Ques-
tionnaire 4 (2001) (available at http://www.justiceatstake.
org/files/JASNationalSurveyResults.pdf) (describing survey
results indicating that 76 percent of registered voters believe
that campaign contributions influence judicial decisions);
id., at 7 (describing survey results indicating that two-thirds
of registered voters believe individuals and groups who give
money to judicial candidates often receive favorable treat-
ment); Barnhizer, “On the Make”: Campaign Funding and
the Corrupting of the American Judiciary, 50 Cath. U. L. Rev.
361, 379 (2001) (relating anecdotes of lawyers who felt
that their contributions to judicial campaigns affected their
chance of success in court).
Despite these significant problems, 39 States currently em-
ploy some form of judicial elections for their appellate courts,
general jurisdiction trial courts, or both. American Judica-
ture Society, Judicial Selection in the States: Appellate and
General Jurisdiction Courts (Apr. 2002). Judicial elections
were not always so prevalent. The first 29 States of the
Union adopted methods for selecting judges that did not in-
volve popular elections. See Croley, The Majoritarian Dif-

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ficulty: Elective Judiciaries and the Rule of Law, 62 U. Chi.
L. Rev. 689, 716 (1995). As the Court explains, however,
beginning with Georgia in 1812, States began adopting sys-
tems for judicial elections. See ante, at 785. From the
1830’s until the 1850’s, as part of the Jacksonian movement
toward greater popular control of public office, this trend ac-
celerated, see Goldschmidt, Merit Selection: Current Status,
Procedures, and Issues, 49 U. Miami L. Rev. 1, 5 (1994), and
by the Civil War, 22 of the 34 States elected their judges,
ibid. By the beginning of the 20th century, however,
elected judiciaries increasingly came to be viewed as incom-
petent and corrupt, and criticism of partisan judicial elec-
tions mounted. Croley, supra, at 723. In 1906, Roscoe
Pound gave a speech to the American Bar Association in
which he claimed that “compelling judges to become politi-
cians, in many jurisdictions has almost destroyed the tradi-
tional respect for the bench.” The Causes of Popular Dis-
satisfaction with the Administration of Justice, 8 Baylor L.
Rev. 1, 23 (1956) (reprinting Pound’s speech).
In response to such concerns, some States adopted a modi-
fied system of judicial selection that became known as the
Missouri Plan (because Missouri was the first State to adopt
it for most of its judicial posts). See Croley, 62 U. Chi.
L. Rev., at 724. Under the Missouri Plan, judges are ap-
pointed by a high elected official, generally from a list of
nominees put together by a nonpartisan nominating commis-
sion, and then subsequently stand for unopposed retention
elections in which voters are asked whether the judges
should be recalled. Ibid. If a judge is recalled, the vacancy
is filled through a new nomination and appointment. Ibid.
This system obviously reduces threats to judicial impartial-
ity, even if it does not eliminate all popular pressure on
judges. See Grodin, Developing a Consensus of Constraint:
A Judge’s Perspective on Judicial Retention Elections, 61
S. Cal. L. Rev. 1969, 1980 (1988) (admitting that he cannot
be sure that his votes as a California Supreme Court Justice

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792 REPUBLICAN PARTY OF MINN. v. WHITE
Kennedy, J., concurring
in “critical cases” during 1986 were not influenced subcon-
sciously by his awareness that the outcomes could affect his
chances in the retention elections being conducted that year).
The Missouri Plan is currently used to fill at least some judi-
cial offices in 15 States. Croley, supra, at 725–726; Ameri-
can Judicature Society, supra.
Thirty-one States, however, still use popular elections to
select some or all of their appellate and/or general jurisdic-
tion trial court judges, who thereafter run for reelection
periodically. Ibid. Of these, slightly more than half use
nonpartisan elections, and the rest use partisan elections.
Ibid. Most of the States that do not have any form of judi-
cial elections choose judges through executive nomination
and legislative confirmation. See Croley, supra, at 725.
Minnesota has chosen to select its judges through con-
tested popular elections instead of through an appointment
system or a combined appointment and retention election
system along the lines of the Missouri Plan. In doing so
the State has voluntarily taken on the risks to judicial bias
described above. As a result, the State’s claim that it needs
to significantly restrict judges’ speech in order to protect
judicial impartiality is particularly troubling. If the State
has a problem with judicial impartiality, it is largely one the
State brought upon itself by continuing the practice of popu-
larly electing judges.
Justice Kennedy, concurring.
I agree with the Court that Minnesota’s prohibition on
judicial candidates’ announcing their legal views is an un-
constitutional abridgment of the freedom of speech. There
is authority for the Court to apply strict scrutiny analysis
to resolve some First Amendment cases, see, e. g., Simon &
Schuster, Inc. v. Members of N. Y. State Crime Victims Bd.,
502 U. S. 105 (1991), and the Court explains in clear and
forceful terms why the Minnesota regulatory scheme fails
that test. So I join its opinion.

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793 Cite as: 536 U. S. 765 (2002)
Kennedy, J., concurring
I adhere to my view, however, that content-based speech
restrictions that do not fall within any traditional exception
should be invalidated without inquiry into narrow tailoring
or compelling government interests. The speech at issue
here does not come within any of the exceptions to the First
Amendment recognized by the Court. “Here, a law is di-
rected to speech alone where the speech in question is not
obscene, not defamatory, not words tantamount to an act oth-
erwise criminal, not an impairment of some other constitu-
tional right, not an incitement to lawless action, and not cal-
culated or likely to bring about imminent harm the State
has the substantive power to prevent. No further inquiry
is necessary to reject the State’s argument that the statute
should be upheld.” Id., at 124 (Kennedy, J., concurring in
judgment). The political speech of candidates is at the heart
of the First Amendment, and direct restrictions on the con-
tent of candidate speech are simply beyond the power of gov-
ernment to impose.
Here, Minnesota has sought to justify its speech restric-
tion as one necessary to maintain the integrity of its judi-
ciary. Nothing in the Court’s opinion should be read to cast
doubt on the vital importance of this state interest. Courts,
in our system, elaborate principles of law in the course of
resolving disputes. The power and the prerogative of a
court to perform this function rest, in the end, upon the re-
spect accorded to its judgments. The citizen’s respect for
judgments depends in turn upon the issuing court’s absolute
probity. Judicial integrity is, in consequence, a state inter-
est of the highest order.
Articulated standards of judicial conduct may advance this
interest. See Shepard, Campaign Speech: Restraint and
Liberty in Judicial Ethics, 9 Geo. J. Legal Ethics 1059 (1996).
To comprehend, then to codify, the essence of judicial integ-
rity is a hard task, however. “The work of deciding cases
goes on every day in hundreds of courts throughout the land.
Any judge, one might suppose, would find it easy to describe

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794 REPUBLICAN PARTY OF MINN. v. WHITE
Kennedy, J., concurring
the process which he had followed a thousand times and
more. Nothing could be farther from the truth.” B. Car-
dozo, The Nature of the Judicial Process 9 (1921). Much the
same can be said of explicit standards to ensure judicial in-
tegrity. To strive for judicial integrity is the work of a life-
time. That should not dissuade the profession. The diffi-
culty of the undertaking does not mean we should refrain
from the attempt. Explicit standards of judicial conduct
provide essential guidance for judges in the proper discharge
of their duties and the honorable conduct of their office. The
legislative bodies, judicial committees, and professional as-
sociations that promulgate those standards perform a vital
public service. See, e. g., Administrative Office of U. S.
Courts, Code of Judicial Conduct for United States Judges
(1999). Yet these standards may not be used by the State to
abridge the speech of aspiring judges in a judicial campaign.
Minnesota may choose to have an elected judiciary. It
may strive to define those characteristics that exemplify
judicial excellence. It may enshrine its definitions in a code
of judicial conduct. It may adopt recusal standards more
rigorous than due process requires, and censure judges who
violate these standards. What Minnesota may not do, how-
ever, is censor what the people hear as they undertake to
decide for themselves which candidate is most likely to be
an exemplary judicial officer. Deciding the relevance of can-
didate speech is the right of the voters, not the State. See
Brown v. Hartlage, 456 U. S. 45, 60 (1982). The law in ques-
tion here contradicts the principle that unabridged speech is
the foundation of political freedom.
The State of Minnesota no doubt was concerned, as many
citizens and thoughtful commentators are concerned, that ju-
dicial campaigns in an age of frenetic fundraising and mass
media may foster disrespect for the legal system. Indeed,
from the beginning there have been those who believed that
the rough-and-tumble of politics would bring our governmen-
tal institutions into ill repute. And some have sought to

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795 Cite as: 536 U. S. 765 (2002)
Kennedy, J., concurring
cure this tendency with governmental restrictions on politi-
cal speech. See Sedition Act of 1798, ch. 74, 1 Stat. 596.
Cooler heads have always recognized, however, that these
measures abridge the freedom of speech—not because the
state interest is insufficiently compelling, but simply because
content-based restrictions on political speech are “ ‘expressly
and positively forbidden by’ ” the First Amendment. See
New York Times Co. v. Sullivan, 376 U. S. 254, 274 (1964)
(quoting the Virginia Resolutions of 1798). The State can-
not opt for an elected judiciary and then assert that its de-
mocracy, in order to work as desired, compels the abridg-
ment of speech.
If Minnesota believes that certain sorts of candidate
speech disclose flaws in the candidate’s credentials, democ-
racy and free speech are their own correctives. The legal
profession, the legal academy, the press, voluntary groups,
political and civic leaders, and all interested citizens can use
their own First Amendment freedoms to protest statements
inconsistent with standards of judicial neutrality and judicial
excellence. Indeed, if democracy is to fulfill its promise,
they must do so. They must reach voters who are uninter-
ested or uninformed or blinded by partisanship, and they
must urge upon the voters a higher and better understand-
ing of the judicial function and a stronger commitment to
preserving its finest traditions. Free elections and free
speech are a powerful combination: Together they may ad-
vance our understanding of the rule of law and further a
commitment to its precepts.
There is general consensus that the design of the Federal
Constitution, including lifetime tenure and appointment by
nomination and confirmation, has preserved the independ-
ence of the Federal Judiciary. In resolving this case, how-
ever, we should refrain from criticism of the State’s choice to
use open elections to select those persons most likely to
achieve judicial excellence. States are free to choose this
mechanism rather than, say, appointment and confirmation.

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796 REPUBLICAN PARTY OF MINN. v. WHITE
Kennedy, J., concurring
By condemning judicial elections across the board, we im-
plicitly condemn countless elected state judges and without
warrant. Many of them, despite the difficulties imposed by
the election system, have discovered in the law the enlight-
enment, instruction, and inspiration that make them
independent-minded and faithful jurists of real integrity.
We should not, even by inadvertence, “impute to judges a
lack of firmness, wisdom, or honor.” Bridges v. California,
314 U. S. 252, 273 (1941).
These considerations serve but to reinforce the conclusion
that Minnesota’s regulatory scheme is flawed. By abridging
speech based on its content, Minnesota impeaches its own
system of free and open elections. The State may not regu-
late the content of candidate speech merely because the
speakers are candidates. This case does not present the
question whether a State may restrict the speech of judges
because they are judges—for example, as part of a code of
judicial conduct; the law at issue here regulates judges only
when and because they are candidates. Whether the ration-
ale of Pickering v. Board of Ed. of Township High School
Dist. 205, Will Cty., 391 U. S. 563, 568 (1968), and Connick v.
Myers, 461 U. S. 138 (1983), could be extended to allow a
general speech restriction on sitting judges—regardless of
whether they are campaigning—in order to promote the
efficient administration of justice, is not an issue raised
here.
Petitioner Gregory Wersal was not a sitting judge but a
challenger; he had not voluntarily entered into an em-
ployment relationship with the State or surrendered any
First Amendment rights. His speech may not be controlled
or abridged in this manner. Even the undoubted interest
of the State in the excellence of its judiciary does not
allow it to restrain candidate speech by reason of its con-
tent. Minnesota’s attempt to regulate campaign speech is
impermissible.

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797 Cite as: 536 U. S. 765 (2002)
Stevens, J., dissenting
Justice Stevens, with whom Justice Souter, Justice
Ginsburg, and Justice Breyer join, dissenting.
In her dissenting opinion, Justice Ginsburg has cogently
explained why the Court’s holding is unsound. I therefore
join her opinion without reservation. I add these comments
to emphasize the force of her arguments and to explain why
I find the Court’s reasoning even more troubling than its
holding. The limits of the Court’s holding are evident: Even
if the Minnesota Lawyers Professional Responsibility Board
(Board) may not sanction a judicial candidate for announcing
his views on issues likely to come before him, it may surely
advise the electorate that such announcements demonstrate
the speaker’s unfitness for judicial office. If the solution to
harmful speech must be more speech, so be it. The Court’s
reasoning, however, will unfortunately endure beyond the
next election cycle. By obscuring the fundamental distinc-
tion between campaigns for the judiciary and the political
branches, and by failing to recognize the difference between
statements made in articles or opinions and those made on
the campaign trail, the Court defies any sensible notion of
the judicial office and the importance of impartiality in that
context.
The Court’s disposition rests on two seriously flawed
premises—an inaccurate appraisal of the importance of judi-
cial independence and impartiality, and an assumption that
judicial candidates should have the same freedom “ ‘to ex-
press themselves on matters of current public importance’ ”
as do all other elected officials. Ante, at 781–782. Elected
judges, no less than appointed judges, occupy an office of
trust that is fundamentally different from that occupied by
policymaking officials. Although the fact that they must
stand for election makes their job more difficult than that of
the tenured judge, that fact does not lessen their duty to
respect essential attributes of the judicial office that have
been embedded in Anglo-American law for centuries.

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798 REPUBLICAN PARTY OF MINN. v. WHITE
Stevens, J., dissenting
There is a critical difference between the work of the
judge and the work of other public officials. In a democracy,
issues of policy are properly decided by majority vote; it is
the business of legislators and executives to be popular.
But in litigation, issues of law or fact should not be deter-
mined by popular vote; it is the business of judges to be
indifferent to unpopularity. Sir Matthew Hale pointedly de-
scribed this essential attribute of the judicial office in words
which have retained their integrity for centuries:
“ ‘11. That popular or court applause or distaste have
no influence in anything I do, in point of distribution
of justice.
“ ‘12. Not to be solicitous what men will say or think,
so long as I keep myself exactly according to the rule
of justice.’ ” 1
Consistent with that fundamental attribute of the office,
countless judges in countless cases routinely make rulings
that are unpopular and surely disliked by at least 50 percent
of the litigants who appear before them. It is equally com-
mon for them to enforce rules that they think unwise, or
that are contrary to their personal predilections. For this
reason, opinions that a lawyer may have expressed before
becoming a judge, or a judicial candidate, do not disqualify
anyone for judicial service because every good judge is fully
aware of the distinction between the law and a personal point
of view. It is equally clear, however, that such expressions
after a lawyer has been nominated to judicial office shed lit-
tle, if any, light on his capacity for judicial service. Indeed,
to the extent that such statements seek to enhance the popu-
larity of the candidate by indicating how he would rule in
specific cases if elected, they evidence a lack of fitness for
the office.
1 2 J. Campbell, Lives of the Chief Justices of England 208 (1873) (quot-
ing Hale’s Rules For His Judicial Guidance, Things Necessary to be Con-
tinually Had in Remembrance).

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799 Cite as: 536 U. S. 765 (2002)
Stevens, J., dissenting
Of course, any judge who faces reelection may believe that
he retains his office only so long as his decisions are popular.
Nevertheless, the elected judge, like the lifetime appointee,
does not serve a constituency while holding that office. He
has a duty to uphold the law and to follow the dictates of the
Constitution. If he is not a judge on the highest court in
the State, he has an obligation to follow the precedent of that
court, not his personal views or public opinion polls.2 He
may make common law, but judged on the merits of individ-
ual cases, not as a mandate from the voters.
By recognizing a conflict between the demands of electoral
politics and the distinct characteristics of the judiciary, we
2 The Court largely ignores the fact that judicial elections are not lim-
ited to races for the highest court in the State. Even if announcing one’s
views in the context of a campaign for the State Supreme Court might be
permissible, the same statements are surely less appropriate when one is
running for an intermediate or trial court judgeship. Such statements
not only display a misunderstanding of the judicial role, but also mislead
the voters by giving them the false impression that a candidate for the
trial court will be able to and should decide cases based on his personal
views rather than precedent.
Indeed, the Court’s entire analysis has a hypothetical quality to it that
stems, in part, from the fact that no candidate has yet been sanctioned for
violating the announce clause. The one complaint filed against petitioner
Gregory Wersal for campaign materials during his 1996 election run was
dismissed by the Board. App. 16–21. Moreover, when Wersal sought an
advisory opinion during his 1998 campaign, the Board could not evaluate
his request because he had “not specified what statement [he] would make
that may or may not be a view on a disputed, legal or political issue.” Id.,
at 32. Since Wersal failed to provide examples of statements he wished
to make, and because the Board had its own doubts about the constitution-
ality of the announce clause, it advised Wersal that “unless the speech at
issue violates other prohibitions listed in Canon 5 or other portions of the
Code of Judicial Conduct, it is our belief that this section is not, as written,
constitutionally enforceable.” Ibid. Consequently, the Court is left to
decide a question of great constitutional importance in a case in which
either the petitioner’s statements were not subject to the prohibition in
question, or he neglected to supply any concrete examples of statements
he wished to make, and the Board refused to enforce the prohibition be-
cause of its own constitutional concerns.

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800 REPUBLICAN PARTY OF MINN. v. WHITE
Stevens, J., dissenting
do not have to put States to an all or nothing choice of aban-
doning judicial elections or having elections in which any-
thing goes. As a practical matter, we cannot know for sure
whether an elected judge’s decisions are based on his inter-
pretation of the law or political expediency. In the absence
of reliable evidence one way or the other, a State may rea-
sonably presume that elected judges are motivated by the
highest aspirations of their office. But we do know that a
judicial candidate, who announces his views in the context of
a campaign, is effectively telling the electorate: “Vote for me
because I believe X, and I will judge cases accordingly.”
Once elected, he may feel free to disregard his campaign
statements, ante, at 780–781, but that does not change the
fact that the judge announced his position on an issue likely
to come before him as a reason to vote for him. Minnesota
has a compelling interest in sanctioning such statements.
A candidate for judicial office who goes beyond the expres-
sion of “general observation about the law . . . in order to
obtain favorable consideration” of his candidacy, Laird v.
Tatum, 409 U. S. 824, 836, n. 5 (1972) (memorandum of Rehn-
quist, J., on motion for recusal), demonstrates either a lack
of impartiality or a lack of understanding of the importance
of maintaining public confidence in the impartiality of the
judiciary. It is only by failing to recognize the distinction,
clearly stated by then-Justice Rehnquist, between state-
ments made during a campaign or confirmation hearing and
those made before announcing one’s candidacy, that the
Court is able to conclude: “[S]ince avoiding judicial precon-
ceptions on legal issues is neither possible nor desirable, pre-
tending otherwise by attempting to preserve the ‘appear-
ance’ of that type of impartiality can hardly be a compelling
state interest either,” ante, at 778.
Even when “impartiality” is defined in its narrowest sense
to embrace only “the lack of bias for or against either party
to the proceeding,” ante, at 775, the announce clause serves
that interest. Expressions that stress a candidate’s unbro-

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801 Cite as: 536 U. S. 765 (2002)
Stevens, J., dissenting
ken record of affirming convictions for rape,3 for example,
imply a bias in favor of a particular litigant (the prosecutor)
and against a class of litigants (defendants in rape cases).
Contrary to the Court’s reasoning in its first attempt to de-
fine impartiality, ante, at 775–776, an interpretation of the
announce clause that prohibits such statements serves the
State’s interest in maintaining both the appearance of this
form of impartiality and its actuality.
When the Court evaluates the importance of impartiality
in its broadest sense, which it describes as “the interest in
openmindedness, or at least in the appearance of openmind-
edness,” ante, at 778, it concludes that the announce clause
is “so woefully underinclusive as to render belief in that
purpose a challenge to the credulous,” ante, at 780. It is
underinclusive, in the Court’s view, because campaign state-
ments are an infinitesimal portion of the public commitments
to legal positions that candidates make during their profes-
sional careers. It is not, however, the number of legal views
that a candidate may have formed or discussed in his prior
career that is significant. Rather, it is the ability both
to reevaluate them in the light of an adversarial presen-
tation, and to apply the governing rule of law even when
inconsistent with those views, that characterize judicial
openmindedness.
The Court boldly asserts that respondents have failed to
carry their burden of demonstrating “that campaign state-
ments are uniquely destructive of openmindedness,” ante,
at 781. But the very purpose of most statements prohibited
by the announce clause is to convey the message that the
candidate’s mind is not open on a particular issue. The law-
yer who writes an article advocating harsher penalties for
polluters surely does not commit to that position to the
same degree as the candidate who says “vote for me because
I believe all polluters deserve harsher penalties.” At the
3 See Buckley v. Illinois Judicial Inquiry Bd., 997 F. 2d 224, 226 (CA7
1993).

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802 REPUBLICAN PARTY OF MINN. v. WHITE
Stevens, J., dissenting
very least, such statements obscure the appearance of open-
mindedness. More importantly, like the reasoning in the
Court’s opinion, they create the false impression that the
standards for the election of political candidates apply
equally to candidates for judicial office.4
The Court seems to have forgotten its prior evaluation of
the importance of maintaining public confidence in the “disin-
terestedness” of the judiciary. Commenting on the danger
that participation by judges in a political assignment might
erode that public confidence, we wrote: “While the problem
of individual bias is usually cured through recusal, no such
mechanism can overcome the appearance of institutional
partiality that may arise from judiciary involvement in the
making of policy. The legitimacy of the Judicial Branch
ultimately depends on its reputation for impartiality and
nonpartisanship. That reputation may not be borrowed by
the political Branches to cloak their work in the neutral
colors of judicial action.” Mistretta v. United States, 488
U. S. 361, 407 (1989).
Conversely, the judicial reputation for impartiality and
openmindedness is compromised by electioneering that em-
phasizes the candidate’s personal predilections rather than
his qualifications for judicial office. As an elected judge re-
cently noted:
“Informed criticism of court rulings, or of the pro-
fessional or personal conduct of judges, should play an
4 Justice Kennedy would go even further and hold that no content-
based restriction of a judicial candidate’s speech is permitted under the
First Amendment. Ante, at 793 (concurring opinion). While he does not
say so explicitly, this extreme position would preclude even Minnesota’s
prohibition against “pledges or promises” by a candidate for judicial office.
Minn. Code of Judicial Conduct, Canon 5(A)(3)(d)(i) (2002). A candidate
could say “vote for me because I promise to never reverse a rape convic-
tion,” and the Board could do nothing to formally sanction that candidate.
The unwisdom of this proposal illustrates why the same standards should
not apply to speech in campaigns for judicial and legislative office.

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803 Cite as: 536 U. S. 765 (2002)
Ginsburg, J., dissenting
important role in maintaining judicial accountability.
However, attacking courts and judges—not because
they are wrong on the law or the facts of a case, but
because the decision is considered wrong simply as a
matter of political judgment—maligns one of the basic
tenets of judicial independence—intellectual honesty
and dedication to enforcement of the rule of law regard-
less of popular sentiment. Dedication to the rule of law
requires judges to rise above the political moment in
making judicial decisions. What is so troubling about
criticism of court rulings and individual judges based
solely on political disagreement with the outcome is that
it evidences a fundamentally misguided belief that the
judicial branch should operate and be treated just like
another constituency-driven political arm of govern-
ment. Judges should not have ‘political constituencies.’
Rather, a judge’s fidelity must be to enforcement of the
rule of law regardless of perceived popular will.” De
Muniz, Politicizing State Judicial Elections: A Threat to
Judicial Independence, 38 Willamette L. Rev. 367, 387
(2002).
The disposition of this case on the flawed premise that the
criteria for the election to judicial office should mirror the
rules applicable to political elections is profoundly mis-
guided. I therefore respectfully dissent.
Justice Ginsburg, with whom Justice Stevens, Jus-
tice Souter, and Justice Breyer join, dissenting.
Whether state or federal, elected or appointed, judges per-
form a function fundamentally different from that of the peo-
ple’s elected representatives. Legislative and executive of-
ficials act on behalf of the voters who placed them in office;
“judge[s] represen[t] the Law.” Chisom v. Roemer, 501 U. S.
380, 411 (1991) (Scalia, J., dissenting). Unlike their coun-
terparts in the political branches, judges are expected to

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804 REPUBLICAN PARTY OF MINN. v. WHITE
Ginsburg, J., dissenting
refrain from catering to particular constituencies or com-
mitting themselves on controversial issues in advance of ad-
versarial presentation. Their mission is to decide “individ-
ual cases and controversies” on individual records, Plaut v.
Spendthrift Farm, Inc., 514 U. S. 211, 266 (1995) (Stevens,
J., dissenting), neutrally applying legal principles, and, when
necessary, “stand[ing] up to what is generally supreme in a
democracy: the popular will,” Scalia, The Rule of Law as a
Law of Rules, 56 U. Chi. L. Rev. 1175, 1180 (1989).
A judiciary capable of performing this function, owing
fidelity to no person or party, is a “longstanding Anglo-
American tradition,” United States v. Will, 449 U. S. 200, 217
(1980), an essential bulwark of constitutional government, a
constant guardian of the rule of law. The guarantee of an
independent, impartial judiciary enables society to “with-
draw certain subjects from the vicissitudes of political con-
troversy, to place them beyond the reach of majorities and
officials and to establish them as legal principles to be ap-
plied by the courts.” West Virginia Bd. of Ed. v. Barnette,
319 U. S. 624, 638 (1943). “Without this, all the reservations
of particular rights or privileges would amount to nothing.”
The Federalist No. 78, p. 466 (C. Rossiter ed. 1961).
The ability of the judiciary to discharge its unique role
rests to a large degree on the manner in which judges are
selected. The Framers of the Federal Constitution sought
to advance the judicial function through the structural pro-
tections of Article III, which provide for the selection of
judges by the President on the advice and consent of the
Senate, generally for lifetime terms. Through its own Con-
stitution, Minnesota, in common with most other States, has
decided to allow its citizens to choose judges directly in peri-
odic elections. But Minnesota has not thereby opted to in-
stall a corps of political actors on the bench; rather, it has
endeavored to preserve the integrity of its judiciary by other
means. Recognizing that the influence of political parties is
incompatible with the judge’s role, for example, Minnesota

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Ginsburg, J., dissenting
has designated all judicial elections nonpartisan. See Pe-
terson v. Stafford, 490 N. W. 2d 418, 425 (Minn. 1992). And
it has adopted a provision, here called the Announce Clause,
designed to prevent candidates for judicial office from “pub-
licly making known how they would decide issues likely to
come before them as judges.” Republican Party of Minn.
v. Kelly, 247 F. 3d 854, 881–882 (CA8 2001).
The question this case presents is whether the First
Amendment stops Minnesota from furthering its interest
in judicial integrity through this precisely targeted speech
restriction.
I
The speech restriction must fail, in the Court’s view, be-
cause an electoral process is at stake; if Minnesota opts to
elect its judges, the Court asserts, the State may not rein in
what candidates may say. See ante, at 781 (notion that
“right to speak out on disputed issues” may be abridged in
an election context “sets our First Amendment jurispru-
dence on its head”); ante, at 787–788 (power to dispense with
elections does not include power to curtail candidate speech
if State leaves election process in place); 247 F. 3d, at 897
(Beam, J., dissenting) (“[W]hen a state opts to hold an elec-
tion, it must commit itself to a complete election, replete with
free speech and association.”); id., at 903 (same).
I do not agree with this unilocular, “an election is an elec-
tion,” approach. Instead, I would differentiate elections for
political offices, in which the First Amendment holds full
sway, from elections designed to select those whose office it
is to administer justice without respect to persons. Minne-
sota’s choice to elect its judges, I am persuaded, does not
preclude the State from installing an election process geared
to the judicial office.
Legislative and executive officials serve in representative
capacities. They are agents of the people; their primary
function is to advance the interests of their constituencies.
Candidates for political offices, in keeping with their repre-

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Ginsburg, J., dissenting
sentative role, must be left free to inform the electorate of
their positions on specific issues. Armed with such informa-
tion, the individual voter will be equipped to cast her ballot
intelligently, to vote for the candidate committed to positions
the voter approves. Campaign statements committing the
candidate to take sides on contentious issues are therefore
not only appropriate in political elections; they are “at the
core of our electoral process,” Williams v. Rhodes, 393 U. S.
23, 32 (1968), for they “enhance the accountability of govern-
ment officials to the people whom they represent,” Brown v.
Hartlage, 456 U. S. 45, 55 (1982).
Judges, however, are not political actors. They do not sit
as representatives of particular persons, communities, or
parties; they serve no faction or constituency. “[I]t is the
business of judges to be indifferent to popularity.” Chisom,
501 U. S., at 401, n. 29 (internal quotation marks omitted).
They must strive to do what is legally right, all the more
so when the result is not the one “the home crowd” wants.
Rehnquist, Dedicatory Address: Act Well Your Part: Therein
All Honor Lies, 7 Pepperdine L. Rev. 227, 229–300 (1980).
Even when they develop common law or give concrete mean-
ing to constitutional text, judges act only in the context of
individual cases, the outcome of which cannot depend on the
will of the public. See Barnette, 319 U. S., at 638 (“One’s
right to life, liberty, and property, to free speech, a free
press, freedom of worship and assembly, and other funda-
mental rights may not be submitted to vote; they depend on
the outcome of no elections.”).
Thus, the rationale underlying unconstrained speech in
elections for political office—that representative government
depends on the public’s ability to choose agents who will act
at its behest—does not carry over to campaigns for the
bench. As to persons aiming to occupy the seat of judg-
ment, the Court’s unrelenting reliance on decisions involving
contests for legislative and executive posts is manifestly out
of place. E. g., ante, at 781–782 (quoting Wood v. Georgia,

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Ginsburg, J., dissenting
370 U. S. 375, 395 (1962) (“The role that elected officials play
in our society makes it all the more imperative that they be
allowed freely to express themselves on matters of current
public importance.” (Emphasis added.))). See O’Neil, The
Canons in the Courts: Recent First Amendment Rulings, 35
Ind. L. Rev. 701, 717 (2002) (reliance on cases involving non-
judicial campaigns, particularly Brown v. Hartlage, is “griev-
ously misplaced”; “[h]ow any thoughtful judge could derive
from that ruling any possible guidance for cases that involve
judicial campaign speech seems baffling”). In view of the
magisterial role judges must fill in a system of justice, a role
that removes them from the partisan fray, States may limit
judicial campaign speech by measures impermissible in elec-
tions for political office. See Buckley v. Illinois Judicial
Inquiry Bd., 997 F. 2d 224, 228 (CA7 1993) (“Mode of appoint-
ment is only one factor that enables distinctions to be made
among different kinds of public official. Judges remain dif-
ferent from legislators and executive officials, even when all
are elected, in ways that bear on the strength of the state’s
interest in restricting their freedom of speech.”).
The Court sees in this conclusion, and in the Announce
Clause that embraces it, “an obvious tension,” ante, at 787:
The Minnesota electorate is permitted to select its judges by
popular vote, but is not provided information on “subjects of
interest to the voters,” ibid.—in particular, the voters are
not told how the candidate would decide controversial cases
or issues if elected. This supposed tension, however, rests
on the false premise that by departing from the federal
model with respect to who chooses judges, Minnesota neces-
sarily departed from the federal position on the criteria rele-
vant to the exercise of that choice.1
1 In the context of the federal system, how a prospective nominee for
the bench would resolve particular contentious issues would certainly be
“of interest” to the President and the Senate in the exercise of their re-
spective nomination and confirmation powers, just as information of that
type would “interest” a Minnesota voter. But in accord with a longstand-

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808 REPUBLICAN PARTY OF MINN. v. WHITE
Ginsburg, J., dissenting
The Minnesota Supreme Court thought otherwise:
“The methods by which the federal system and other
states initially select and then elect or retain judges are
varied, yet the explicit or implicit goal of the constitu-
tional provisions and enabling legislation is the same: to
create and maintain an independent judiciary as free
from political, economic and social pressure as possible
so judges can decide cases without those influences.”
Peterson, 490 N. W. 2d, at 420.
Nothing in the Court’s opinion convincingly explains why
Minnesota may not pursue that goal in the manner it did.
Minnesota did not choose a judicial selection system with
all the trappings of legislative and executive races. While
providing for public participation, it tailored judicial selec-
tion to fit the character of third branch office holding. See
id., at 425 (Minnesota’s system “keep[s] the ultimate choice
with the voters while, at the same time, recognizing the
unique independent nature of the judicial function.”). The
balance the State sought to achieve—allowing the people to
elect judges, but safeguarding the process so that the integ-
rity of the judiciary would not be compromised—should en-
ing norm, every Member of this Court declined to furnish such information
to the Senate, and presumably to the President as well. See Brief for
Respondents 17–42 (collecting statements at Senate confirmation hear-
ings). Surely the Court perceives no tension here; the line each of us
drew in response to preconfirmation questioning, the Court would no
doubt agree, is crucial to the health of the Federal Judiciary. But by the
Court’s reasoning, the reticence of prospective and current federal judicial
nominees dishonors Article II, for it deprives the President and the Senate
of information that might aid or advance the decision to nominate or con-
firm. The point is not, of course, that this “practice of voluntarily demur-
ring” by itself “establish[es] the legitimacy of legal compulsion to demur,”
ante, at 783–784, n. 11 (emphasis deleted). The federal norm simply illus-
trates that, contrary to the Court’s suggestion, there is nothing inherently
incongruous in depriving those charged with choosing judges of certain
information they might desire during the selection process.

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Ginsburg, J., dissenting
counter no First Amendment shoal. See generally O’Neil,
supra, at 715–723.
II
Proper resolution of this case requires correction of the
Court’s distorted construction of the provision before us for
review. According to the Court, the Announce Clause “pro-
hibits a judicial candidate from stating his views on any spe-
cific nonfanciful legal question within the province of the
court for which he is running, except in the context of dis-
cussing past decisions—and in the latter context as well, if
he expresses the view that he is not bound by stare decisis.”
Ante, at 773. In two key respects, that construction misrep-
resents the meaning of the Announce Clause as interpreted
by the Eighth Circuit and embraced by the Minnesota Su-
preme Court, In re Code of Judicial Conduct, 639 N. W. 2d
55 (2002), which has the final word on this matter, see Hor-
tonville Joint School Dist. No. 1 v. Hortonville Ed. Assn.,
426 U. S. 482, 488 (1976) (“We are, of course, bound to accept
the interpretation of [the State’s] law by the highest court of
the State.”).
First and most important, the Court ignores a crucial lim-
iting construction placed on the Announce Clause by the
courts below. The provision does not bar a candidate from
generally “stating [her] views” on legal questions, ante, at
773; it prevents her from “publicly making known how [she]
would decide” disputed issues, 247 F. 3d, at 881–882 (empha-
sis added). That limitation places beyond the scope of the
Announce Clause a wide range of comments that may be
highly informative to voters. Consistent with the Eighth
Circuit’s construction, such comments may include, for exam-
ple, statements of historical fact (“As a prosecutor, I ob-
tained 15 drunk driving convictions”); qualified statements
(“Judges should use sparingly their discretion to grant le-
nient sentences to drunk drivers”); and statements framed

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810 REPUBLICAN PARTY OF MINN. v. WHITE
Ginsburg, J., dissenting
at a sufficient level of generality (“Drunk drivers are a threat
to the safety of every driver”). What remains within the
Announce Clause is the category of statements that essen-
tially commit the candidate to a position on a specific issue,
such as “I think all drunk drivers should receive the maxi-
mum sentence permitted by law.” See Tr. of Oral Arg. 45
(candidate may not say “ ‘I’m going to decide this particular
issue this way in the future’ ”).
Second, the Court misportrays the scope of the Clause as
applied to a candidate’s discussion of past decisions. Citing
an apparent concession by respondents at argument, id., at
33–34, the Court concludes that “statements critical of past
judicial decisions are not permissible if the candidate also
states that he is against stare decisis,” ante, at 772 (emphasis
deleted). That conclusion, however, draws no force from the
meaning attributed to the Announce Clause by the Eighth
Circuit. In line with the Minnesota Board on Judicial
Standards, the Court of Appeals stated without qualification
that the Clause “does not prohibit candidates from discussing
appellate court decisions.” 247 F. 3d, at 882 (citing Minn.
Bd. on Judicial Standards, Informal Opinion, Oct. 10, 1990,
App. 55 (“In all election contests, a candidate for judicial of-
fice may discuss decisions and opinions of the Appellate
courts.”)). The Eighth Circuit’s controlling construction
should not be modified by respondents’ on the spot answers
to fast-paced hypothetical questions at oral argument.
Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 170 (1972) (“We
are loath to attach conclusive weight to the relatively sponta-
neous responses of counsel to equally spontaneous question-
ing from the Court during oral argument.”).
The Announce Clause is thus more tightly bounded, and
campaigns conducted under that provision more robust, than
the Court acknowledges. Judicial candidates in Minnesota
may not only convey general information about themselves,
see ante, at 774, they may also describe their conception of
the role of a judge and their views on a wide range of sub-

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811 Cite as: 536 U. S. 765 (2002)
Ginsburg, J., dissenting
jects of interest to the voters. See App. 97–103; Brief for
Minnesota State Bar Association as Amicus Curiae 22–23
(e. g., the criteria for deciding whether to depart from sen-
tencing guidelines, the remedies for racial and gender bias,
and the balance between “free speech rights [and] the need
to control [hate crimes]” (internal quotation marks omitted)).
Further, they may discuss, criticize, or defend past decisions
of interest to voters. What candidates may not do—simply
or with sophistication—is remove themselves from the con-
straints characteristic of the judicial office and declare how
they would decide an issue, without regard to the particular
context in which it is presented, sans briefs, oral argument,
and, as to an appellate bench, the benefit of one’s colleagues’
analyses. Properly construed, the Announce Clause prohib-
its only a discrete subcategory of the statements the Court’s
misinterpretation encompasses.
The Court’s characterization of the Announce Clause as
“election-nullifying,” ante, at 782, “plac[ing] most subjects
of interest to the voters off limits,” ante, at 787, is further
belied by the facts of this case. In his 1996 bid for office,
petitioner Gregory Wersal distributed literature sharply
criticizing three Minnesota Supreme Court decisions. Of
the court’s holding in the first case—that certain unrecorded
confessions must be suppressed—Wersal asked, “Should we
conclude that because the Supreme Court does not trust po-
lice, it allows confessed criminals to go free?” App. 37. Of
the second case, invalidating a state welfare law, Wersal
stated: “The Court should have deferred to the Legislature.
It’s the Legislature which should set our spending policies.”
Ibid. And of the third case, a decision involving abortion
rights, Wersal charged that the court’s holding was “directly
contrary to the opinion of the U. S. Supreme Court,” “un-
precedented,” and a “pro-abortion stance.” Id., at 38.
When a complaint was filed against Wersal on the basis
of those statements, id., at 12–15, the Lawyers Professional
Responsibility Board concluded that no discipline was war-

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812 REPUBLICAN PARTY OF MINN. v. WHITE
Ginsburg, J., dissenting
ranted, in part because it thought the disputed campaign ma-
terials did not violate the Announce Clause, id., at 20–21.
And when, at the outset of his 1998 campaign, Wersal sought
to avoid the possibility of sanction for future statements, he
pursued the option, available to all Minnesota judicial can-
didates, Tr. of Oral Arg. 12–13, of requesting an advisory
opinion concerning the application of the Announce Clause.
App. 24–26. In response to that request, the Board indi-
cated that it did not anticipate any adverse action against
him. Id., at 31–33.2 Wersal has thus never been sanc-
tioned under the Announce Clause for any campaign state-
ment he made. On the facts before us, in sum, the Announce
Clause has hardly stifled the robust communication of ideas
and views from judicial candidate to voter.
III
Even as it exaggerates the reach of the Announce Clause,
the Court ignores the significance of that provision to the
integrated system of judicial campaign regulation Minnesota
has developed. Coupled with the Announce Clause in Min-
nesota’s Code of Judicial Conduct is a provision that prohib-
its candidates from “mak[ing] pledges or promises of conduct
in office other than the faithful and impartial performance of
the duties of the office.” Minn. Code of Judicial Conduct,
Canon 5(A)(3)(d)(i) (2002). Although the Court is correct
that this “pledges or promises” provision is not directly at
issue in this case, see ante, at 770, the Court errs in overlook-
ing the interdependence of that prohibition and the one be-
fore us. In my view, the constitutionality of the Announce
2 In deciding not to sanction Wersal for his campaign statements, and
again in responding to his inquiry about the application of the Announce
Clause, the Board expressed “doubts about the constitutionality of the
current Minnesota Canon.” App. 20; id., at 32. Those doubts, however,
concerned the meaning of the Announce Clause before the Eighth Circuit
applied, and the Minnesota Supreme Court adopted, the limiting construc-
tions that now define that provision’s scope.

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Ginsburg, J., dissenting
Clause cannot be resolved without an examination of that
interaction in light of the interests the pledges or promises
provision serves.
A
All parties to this case agree that, whatever the validity of
the Announce Clause, the State may constitutionally prohibit
judicial candidates from pledging or promising certain re-
sults. See Brief for Petitioners Republican Party of Minne-
sota et al. 36–37; Tr. of Oral Arg. 14–16 (petitioners’ acknowl-
edgment that candidates may be barred from making a
“pledge or promise of an outcome”); Brief for Respondents
11; see also Brief for Brennan Center for Justice et al. as
Amici Curiae 23 (“All of the parties and amici in this case
agree that judges should not make explicit promises or com-
mitments to decide particular cases in a particular manner.”).
The reasons for this agreement are apparent. Pledges or
promises of conduct in office, however commonplace in races
for the political branches, are inconsistent “with the judge’s
obligation to decide cases in accordance with his or her role.”
Tr. of Oral Arg. 16; see Brief for Petitioners Republican
Party of Minnesota et al. 36 (“[B]ecause [judges] have a duty
to decide a case on the basis of the law and facts before them,
they can be prohibited, as candidates, from making such
promises.”). This judicial obligation to avoid prejudgment
corresponds to the litigant’s right, protected by the Due
Process Clause of the Fourteenth Amendment, to “an impar-
tial and disinterested tribunal in both civil and criminal
cases,” Marshall v. Jerrico, Inc., 446 U. S. 238, 242 (1980).
The proscription against pledges or promises thus represents
an accommodation of “constitutionally protected interests
[that] lie on both sides of the legal equation.” Nixon v.
Shrink Missouri Government PAC, 528 U. S. 377, 400 (2000)
(Breyer, J., concurring). Balanced against the candidate’s
interest in free expression is the litigant’s “powerful and in-
dependent constitutional interest in fair adjudicative proce-
dure.” Marshall, 446 U. S., at 243; see Buckley, 997 F. 2d,

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814 REPUBLICAN PARTY OF MINN. v. WHITE
Ginsburg, J., dissenting
at 227 (“Two principles are in conflict and must, to the extent
possible, be reconciled. . . . The roots of both principles lie
deep in our constitutional heritage.”).
The impartiality guaranteed to litigants through the Due
Process Clause adheres to a core principle: “[N]o man is per-
mitted to try cases where he has an interest in the outcome.”
In re Murchison, 349 U. S. 133, 136 (1955). Our cases have
“jealously guarded” that basic concept, for it “ensur[es] that
no person will be deprived of his interests in the absence of
a proceeding in which he may present his case with assur-
ance that the arbiter is not predisposed to find against him.”
Marshall, 446 U. S., at 242.
Applying this principle in Tumey v. Ohio, 273 U. S. 510
(1927), we held that due process was violated where a judge
received a portion of the fines collected from defendants
whom he found guilty. Such an arrangement, we said, gave
the judge a “direct, personal, substantial[, and] pecuniary in-
terest” in reaching a particular outcome and thereby denied
the defendant his right to an impartial arbiter. Id., at 523.
Ward v. Monroeville, 409 U. S. 57 (1972), extended Tumey’s
reasoning, holding that due process was similarly violated
where fines collected from guilty defendants constituted a
large part of a village’s finances, for which the judge, who
also served as the village mayor, was responsible. Even
though the mayor did not personally share in those fines, we
concluded, he “perforce occupie[d] two practically and seri-
ously inconsistent positions, one partisan and the other ju-
dicial.” 409 U. S., at 60 (internal quotation marks omitted).
We applied the principle of Tumey and Ward most recently
in Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813 (1986). That
decision invalidated a ruling of the Alabama Supreme Court
written by a justice who had a personal interest in the reso-
lution of a dispositive issue. The Alabama Supreme Court’s
ruling was issued while the justice was pursuing a separate
lawsuit in an Alabama lower court, and its outcome “had the
clear and immediate effect of enhancing both the legal status

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815 Cite as: 536 U. S. 765 (2002)
Ginsburg, J., dissenting
and the settlement value” of that separate suit. Id., at 824.
As in Ward and Tumey, we held, the justice therefore had
an interest in the outcome of the decision that unsuited him
to participate in the judgment. 475 U. S., at 824. It mat-
tered not whether the justice was actually influenced by this
interest; “[t]he Due Process Clause,” we observed, “may
sometimes bar trial by judges who have no actual bias and
who would do their very best to weigh the scales of justice
equally between contending parties.” Id., at 825 (internal
quotation marks omitted).
These cases establish three propositions important to this
dispute. First, a litigant is deprived of due process where
the judge who hears his case has a “direct, personal, substan-
tial, and pecuniary” interest in ruling against him. Id., at
824 (internal quotation marks and alteration omitted). Sec-
ond, this interest need not be as direct as it was in Tumey,
where the judge was essentially compensated for each con-
viction he obtained; the interest may stem, as in Ward, from
the judge’s knowledge that his success and tenure in office
depend on certain outcomes. “[T]he test,” we have said, “is
whether the . . . situation is one ‘which would offer a possible
temptation to the average man as a judge [that] might lead
him not to hold the balance nice, clear and true.’ ” Ward,
409 U. S., at 60 (quoting Tumey, 273 U. S., at 532). And
third, due process does not require a showing that the judge
is actually biased as a result of his self-interest. Rather, our
cases have “always endeavored to prevent even the proba-
bility of unfairness.” In re Murchison, 349 U. S., at 136.
“[T]he requirement of due process of law in judicial proce-
dure is not satisfied by the argument that men of the highest
honor and the greatest self-sacrifice could carry it on without
danger of injustice.” Tumey, 273 U. S., at 532.3
3 To avoid the import of our due process decisions, the Court dissects
the concept of judicial “impartiality,” ante, at 775–779, concluding that
only one variant of that concept—lack of prejudice against a party—is
secured by the Fourteenth Amendment, ante, at 775–777. Our Due Proc-

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816 REPUBLICAN PARTY OF MINN. v. WHITE
Ginsburg, J., dissenting
The justification for the pledges or promises prohibition
follows from these principles. When a judicial candidate
promises to rule a certain way on an issue that may later
reach the courts, the potential for due process violations is
grave and manifest. If successful in her bid for office, the
judicial candidate will become a judge, and in that capacity
she will be under pressure to resist the pleas of litigants who
advance positions contrary to her pledges on the campaign
trail. If the judge fails to honor her campaign promises, she
will not only face abandonment by supporters of her pro-
fessed views; she will also “ris[k] being assailed as a dissem-
bler,” 247 F. 3d, at 878, willing to say one thing to win an
election and to do the opposite once in office.
A judge in this position therefore may be thought to have
a “direct, personal, substantial, [and] pecuniary interest” in
ruling against certain litigants, Tumey, 273 U. S., at 523, for
she may be voted off the bench and thereby lose her salary
and emoluments unless she honors the pledge that secured
her election. See Shepard, Campaign Speech: Restraint and
Liberty in Judicial Ethics, 9 Geo. J. Legal Ethics 1059, 1083–
1092 (1996); see id., at 1088 (“[A] campaign promise [may be
characterized as] a bribe offered to voters, paid with rulings
consistent with that promise, in return for continued employ-
ess Clause cases do not focus solely on bias against a particular party, but
rather inquire more broadly into whether the surrounding circumstances
and incentives compromise the judge’s ability faithfully to discharge her
assigned duties. See supra, at 815. To be sure, due process violations
may arise where a judge has been so personally “enmeshed in matters”
concerning one party that he is biased against him. See Johnson v. Mis-
sissippi, 403 U. S. 212, 215 (1971) (per curiam) ( judge had been
“a defendant in one of petitioner’s civil rights suits and a losing party at
that”). They may also arise, however, not because of any predisposition
toward a party, but rather because of the judge’s personal interest in re-
solving an issue a certain way. See Aetna Life Ins. Co. v. Lavoie, 475
U. S. 813 (1986). Due process will not countenance the latter situation,
even though the self-interested judge “will apply the law to [the losing
party] in the same way he [would apply] it to any other party” advancing
the same position, ante, at 776.

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Ginsburg, J., dissenting
ment as a judge.”); see also The Federalist No. 79, p. 472
(C. Rossiter ed. 1961) (“In the general course of human na-
ture, a power over a man’s subsistence amounts to a power
over his will.” (emphasis deleted)).
Given this grave danger to litigants from judicial campaign
promises, States are justified in barring expression of such
commitments, for they typify the “situatio[n] . . . in which
experience teaches that the probability of actual bias on the
part of the judge . . . is too high to be constitutionally tolera-
ble.” Withrow v. Larkin, 421 U. S. 35, 47 (1975). By re-
moving this source of “possible temptation” for a judge to
rule on the basis of self-interest, Tumey, 273 U. S., at 532,
the pledges or promises prohibition furthers the State’s
“compellin[g] interest in maintaining a judiciary fully capable
of performing” its appointed task, Gregory v. Ashcroft, 501
U. S. 452, 472 (1991): “judging [each] particular controversy
fairly on the basis of its own circumstances,” United States
v. Morgan, 313 U. S. 409, 421 (1941). See O’Neil, 35 Ind. L.
Rev., at 723 (“What is at stake here is no less than the prom-
ise of fairness, impartiality, and ultimately of due process for
those whose lives and fortunes depend upon judges being
selected by means that are not fully subject to the vagaries
of American politics.”).
In addition to protecting litigants’ due process rights, the
parties in this case further agree, the pledges or promises
clause advances another compelling state interest: preserv-
ing the public’s confidence in the integrity and impartiality
of its judiciary. See Tr. of Oral Arg. 16 (petitioners’ state-
ment that pledges or promises properly fosters “public per-
ception of the impartiality of the judiciary”). See Cox v.
Louisiana, 379 U. S. 559, 565 (1965) (“A State may . . . prop-
erly protect the judicial process from being misjudged in the
minds of the public.”); In re Murchison, 349 U. S., at 136
(“[T]o perform its high function in the best way[,] ‘justice
must satisfy the appearance of justice.’ ” (quoting Offutt v.
United States, 348 U. S. 11, 14 (1954))). Because courts con-

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818 REPUBLICAN PARTY OF MINN. v. WHITE
Ginsburg, J., dissenting
trol neither the purse nor the sword, their authority ulti-
mately rests on public faith in those who don the robe. See
Mistretta v. United States, 488 U. S. 361, 407 (1989) (“The
legitimacy of the Judicial Branch ultimately depends on its
reputation for impartiality and nonpartisanship.”). As the
Minnesota Supreme Court has recognized, all legal sys-
tems—regardless of their method of judicial selection—“can
function only so long as the public, having confidence in the
integrity of its judges, accepts and abides by judicial deci-
sions.” Complaint Concerning Winton, 350 N. W. 2d 337,
340 (1984).
Prohibiting a judicial candidate from pledging or promis-
ing certain results if elected directly promotes the State’s
interest in preserving public faith in the bench. When a
candidate makes such a promise during a campaign, the pub-
lic will no doubt perceive that she is doing so in the hope of
garnering votes. And the public will in turn likely conclude
that when the candidate decides an issue in accord with that
promise, she does so at least in part to discharge her under-
taking to the voters in the previous election and to prevent
voter abandonment in the next. The perception of that un-
seemly quid pro quo—a judicial candidate’s promises on
issues in return for the electorate’s votes at the polls—inev-
itably diminishes the public’s faith in the ability of judges
to administer the law without regard to personal or politi-
cal self-interest.4 Then-Justice Rehnquist’s observations
4 The author of the Court’s opinion declined on precisely these grounds
to tell the Senate whether he would overrule a particular case:
“Let us assume that I have people arguing before me to do it or not to do
it. I think it is quite a thing to be arguing to somebody who you know
has made a representation in the course of his confirmation hearings, and
that is, by way of condition to his being confirmed, that he will do this or
do that. I think I would be in a very bad position to adjudicate the case
without being accused of having a less than impartial view of the matter.”
13 R. Mersky & J. Jacobstein, The Supreme Court of the United States:
Hearings and Reports on Successful and Unsuccessful Nominations of
Supreme Court Justices by the Senate Judiciary Committee, 1916–1986,

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Ginsburg, J., dissenting
about the federal system apply with equal if not greater
force in the context of Minnesota’s elective judiciary: Re-
garding the appearance of judicial integrity,
“[one must] distinguish quite sharply between a public
statement made prior to nomination for the bench, on
the one hand, and a public statement made by a nominee
to the bench. For the latter to express any but the
most general observation about the law would suggest
that, in order to obtain favorable consideration of his
nomination, he deliberately was announcing in advance,
without benefit of judicial oath, briefs, or argument, how
he would decide a particular question that might come
before him as a judge.” Laird v. Tatum, 409 U. S. 824,
836, n. 5 (1972) (memorandum opinion).
B
The constitutionality of the pledges or promises clause is
thus amply supported; the provision not only advances due
process of law for litigants in Minnesota courts, it also re-
inforces the authority of the Minnesota judiciary by promot-
ing public confidence in the State’s judges. The Announce
Clause, however, is equally vital to achieving these compel-
ling ends, for without it, the pledges or promises provision
would be feeble, an arid form, a matter of no real importance.
Uncoupled from the Announce Clause, the ban on pledges
or promises is easily circumvented. By prefacing a cam-
paign commitment with the caveat, “although I cannot prom-
ise anything,” or by simply avoiding the language of prom-
ises or pledges altogether, a candidate could declare with
impunity how she would decide specific issues. Semantic
sanitizing of the candidate’s commitment would not, however,
diminish its pernicious effects on actual and perceived judi-
cial impartiality. To use the Court’s example, a candidate
p. 131 (1989) (hearings before the Senate Judiciary Committee on the nom-
ination of then-Judge Scalia).

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820 REPUBLICAN PARTY OF MINN. v. WHITE
Ginsburg, J., dissenting
who campaigns by saying, “If elected, I will vote to uphold
the legislature’s power to prohibit same-sex marriages,”
ante, at 780, will feel scarcely more pressure to honor that
statement than the candidate who stands behind a podium
and tells a throng of cheering supporters: “I think it is con-
stitutional for the legislature to prohibit same-sex mar-
riages,” ante, at 779. Made during a campaign, both state-
ments contemplate a quid pro quo between candidate and
voter. Both effectively “bind [the candidate] to maintain
that position after election.” Ante, at 770. And both con-
vey the impression of a candidate prejudging an issue to win
votes. Contrary to the Court’s assertion, the “nonpromis-
sory” statement averts none of the dangers posed by the
“promissory” one. See ante, at 780–781 (emphasis deleted).
By targeting statements that do not technically constitute
pledges or promises but nevertheless “publicly mak[e] known
how [the candidate] would decide” legal issues, 247 F. 3d, at
881–882, the Announce Clause prevents this end run around
the letter and spirit of its companion provision.5 No less
than the pledges or promises clause itself, the Announce
5 In the absence of the Announce Clause, other components of the Minne-
sota Code of Judicial Conduct designed to maintain the nonpartisan char-
acter of the State’s judicial elections would similarly unravel. A candi-
date would have no need to “attend political gatherings” or “make
speeches on behalf of a political organization,” Minn. Code of Judical Con-
duct, Canon 5(A)(1)(c), (d) (2002), for she could simply state her views
elsewhere, counting on her supporters to carry those views to the party
faithful. And although candidates would remain barred from “seek[ing],
accept[ing,] or us[ing] endorsements from a political organization,” Canon
5(A)(1)(d), parties might well provide such endorsements unsolicited upon
hearing candidates’ views on specific issues. Cf. ante, at 770 (Minnesota
Republican Party sought to learn Wersal’s views so party could support
or oppose his candidacy). Those unsolicited endorsements, in turn, would
render ineffective the prohibition against candidates “identify[ing] them-
selves as members of a political organization,” Canon 5(A)(1)(a). “Indeed,
it is not too much to say that the entire fabric of Minnesota’s non[p]artisan
elections hangs by the Announce clause thread.” Brief for Minnesota
State Bar Association as Amicus Curiae 20.

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821 Cite as: 536 U. S. 765 (2002)
Ginsburg, J., dissenting
Clause is an indispensable part of Minnesota’s effort to main-
tain the health of its judiciary, and is therefore constitutional
for the same reasons.
* * *
This Court has recognized in the past, as Justice O’Con-
nor does today, see ante, at 788–790 (concurring opinion), a
“fundamental tension between the ideal character of the ju-
dicial office and the real world of electoral politics,” Chisom,
501 U. S., at 400. We have no warrant to resolve that ten-
sion, however, by forcing States to choose one pole or the
other. Judges are not politicians, and the First Amendment
does not require that they be treated as politicians simply
because they are chosen by popular vote. Nor does the
First Amendment command States that wish to promote the
integrity of their judges in fact and appearance to abandon
systems of judicial selection that the people, in the exercise
of their sovereign prerogatives, have devised.
For more than three-quarters of a century, States like Min-
nesota have endeavored, through experiment tested by expe-
rience, to balance the constitutional interests in judicial in-
tegrity and free expression within the unique setting of an
elected judiciary. P. McFadden, Electing Justice: The Law
and Ethics of Judicial Election Campaigns 86 (1990); Brief
for the Conference of Chief Justices as Amicus Curiae
5. The Announce Clause, borne of this long effort, “comes
to this Court bearing a weighty title of respect,” Teamsters
v. Hanke, 339 U. S. 470, 475 (1950). I would uphold it
as an essential component in Minnesota’s accommodation of
the complex and competing concerns in this sensitive area.
Accordingly, I would affirm the judgment of the Court of
Appeals for the Eighth Circuit.