Man Without Qualities

Thursday, June 27, 2002

You Don't Say

While the now-infamous Ninth Circuit "Pledge of Allegiance" case and the Supreme Court "vouchers" case have been attracting attention, another judicial decision just released by the Supreme Court is also worth noting.

In that case, REPUBLICAN PARTY OF MINNESOTA v. WHITE, the United States Supreme Court overturned a Minnesota Supreme Court rule that prohibited a “candidate for a judicial office” from “announc[ing] his or her views on disputed legal or political issues.”

This rule did not pertain to specific cases pending or likely to become pending before the courts. This rule prohibited judicial candidates from saying things like: “I think it is constitutional for the legislature to prohibit same-sex marriages.” Also forbidden were statements such as: "In my view, the Minnessota constitution includes more personal privacy protections than does the federal constitution - and that means that people have a state-constitutional right to engage in political speech in shopping malls," even if there was no shopping mall case before the courts, or about to go before the courts, at that time

Which comes to this: Minnesota elects judges, but the Minnesota Supreme Court rule prohibited candidates running for those elected offices from saying what they would do if they were elected even in general terms. Put another way, the Minnesota Supreme Court rule said to judicial candidates: "You are prohibited from talking about controversial but abstract issues directly related to the public office for which you are a candidate if you relate those abstractions to, say, a specific statute or set of facts. And you can't criticize past Minnesota Supreme Court decisions if you also say that you would not consider yourself bound by those decisions" That sounds like an election rule one might find in, say, Pakistan - since it is hard to imagine something that so obviously offends the First Amendment.

It is weird enough that any American judge would consider such a rule to be consistent with the First Amendment. Here, the Minnesota Supreme Court actually wrote the rule. But it gets worse: The United States Supreme Court overturned the rule by a vote of only 5-to-4. Incredibly, Justices Stevens, Souter, Ginsburg, and Breyer all disagreed - and argued in jaw-dropping dissent that the rule was Constitutional.

It's important to keep this kind of thing in mind when considering just how much (or how little) may preserve us from legal systems like those of Pakistan.

Nobody should be too comfortable.

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