In Republican Party of Minnesota v. White, the Supreme Court in 2002 struck down Minnesota's ban on a judicial candidate's announc[ing] his or her views on disputed legal or political issues. Since then, the American Bar Association and many states have revised their codes of judicial conduct to comply with White's specific holding while seeking to retain other limitations on judicial campaign speech. Such efforts, however, ignore the broader implications of the Court's opinion in White. Both the logic of that opinion and the ideological inclinations of the current Court point to the likely invalidation of major portions of these campaign codes. Rather than squander resources on refining and enforcing a regime with such dim prospects, critics of judicial elections should focus on other means of improving the quality of the electoral process.

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The Looming Collapse of Restrictions on Judicial Campaign Speech

This article examines the last ten years of the Rehnquist Court, which was divided evenly by the Court's highly controversial intervention in the 2000 presidential election, Bush v. Gore. I compare the Court's record before and after that decision both qualitatively and quantitatively, and argue that the Court shifted noticeably to the left, particularly in high-profile cases, after Bush v. Gore, as conservative Justices showed a greater willingness to side with their liberal colleagues to reach liberal results. I hypothesize that this may have reflected an effort, conscious or subconscious, to restore the Court's legitimacy by counteracting images of a partisan body divided along political lines. I also suggest that the same interest in restoring the legitimacy of the Court may have contributed to the Court's substantive emphasis on the values of the rule of law, which was particularly evident in the Court's enemy combatant decisions of 2004 (and for that matter, more recently, in the Court's decision on military tribunals in Hamdan v. Rumsfeld). This "liberal legacy" of Bush v. Gore illustrates one of the checking functions on judicial supremacy - namely the need to maintain the appearance (and reality) that law is distinct from politics. Whether the "Bush v. Gore effect" will continue with the Roberts Court remains to be seen.

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The Liberal Legacy of Bush v. Gore

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Pamela S. Karlan

Papers

Unduly Partial: The Supreme Court and the Fourteenth Amendment in Bush v. Gore