Coal, mountaintop mining, whitewater rafting, and groundbreaking judicial disqualification decisions -- thank you, West Virginia. Remember Caperton v Massey? Here's the latest: a West Virginia Supreme Court justice who pledged in his campaign never to overturn the state's cap on noneconomic damages has refused to recuse himself in a case involving the state cap on noneconomic damages.
Here's what Justice Ketchum is reported to have said during his campaign in 2008:
“I will not vote to overturn it, I will not vote to change it. I will not vote to modify it.”
Here's what West Virginia's code of judicial conduct says in pertinent part about pledges or promises of conduct in office:
A candidate for a judicial office ... shall not (i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office ([or] ii) make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.
And here are excerpts from Justice Scalia's 2002 majority opinion in Republican Party of Minnesota v White, the 5-4 decision overturning as a violation of the First Amendment Minnesota's canon that says a “candidate for a judicial office, including an incumbent judge,” shall not “announce his or her views on disputed legal or political issues”:
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 statement 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 promises 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.
We think it plain that the announce clause is not narrowly tailored to serve impartiality (or the appearance of impartiality) 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. Any party taking that position is just as likely to lose. The judge is applying the law (as he sees it) evenhandedly.
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 before he declares himself a candidate, and may say it repeatedly (until litigation is pending) after he is elected. As a means of pursuing the objective of open-mindedness that respondents 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 citation omitted)).
Justice Stevens asserts that statements made in an election campaign pose a special threat to openmindedness because the candidate, when elected judge, will have a particular reluctance to contradict them. Post, at 5—6. That might be plausible, perhaps, with regard to campaign promises. 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 naï ;ve 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 campaign “pledges or promises,” which is not challenged here. The proposition that judges feel significantly greater compulsion, 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 opposite 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 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 justice. 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 objectives of the statutory scheme would be seriously undermined”); United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 816—825 (2000) (same).
Stay tuned.
