In Zimbabwe, the judges not yet murdered by government-backed mobs are preparing to flee the country after resisting President Robert Mugabe’s rigged elections and unilateral redrafting of the country’s constitution. Meanwhile in Iran, tyrannical courts deter reformers by imprisoning opposition leaders on concocted charges. And in the United States, the Supreme Court has the chance to protect U.S. courts from both nations’ fates.
The court heard arguments Monday in Minnesota lawyer Greg Wersal’s challenge to the state’s law prohibiting judicial election candidates from declaring their views on controversial political or legal questions. The law embodies the hallowed legal tradition that judges should decide each case individually as it arises, and the Supreme Court should preserve this law and the judiciary’s apolitical character.
Legal decisions are accepted because the public perceives the courts as legitimate sources of such pronouncements. If courts become merely mini-legislatures – judges elected because of their popular political views rather than their sound and fair assessment of cases – the political maneuvering that breeds public cynicism of congressional or presidential decisions will also taint judges. And unlike the other branches, the judiciary cannot forcibly carry out its judgments. Zimbabwe displays the result of such events, as powerless courts issue their last meaningless constitutional rulings against a dictator’s legions.
The courts’ power to oppose the will of a majority of citizens or Congress is the power to protect rights and the power to oppress them with near-impunity. Minnesota’s election law properly addresses both potentials by protecting judicial races from becoming political contests driven by majority opinions at the expense of minorities’ legal protections. At the same time, the law provides for election of judges in the first place, allowing citizens a “negative check” against judges who hand down outrageous rulings.
Like all First Amendment claims, Wersal’s belief the campaign law violates his free speech rights deserves serious consideration. But as the classic example of shouting “fire” in a crowded theater illustrates, free speech does have limits, and it is illogical, bad policy and contrary to the Constitution’s purpose to suggest those limits include allowing one prerequisite for freedom (free speech) to undermine another (an apolitical judiciary). Wersal is not required to give up his free speech rights while other candidates run with theirs intact; all Minnesota judicial candidates run under the same rules.
A politicized judiciary will destroy the public’s image of wise and disinterested minds seeking justice. It will either become completely delegitimized – and thus as powerless as the powerless citizens it is supposed to protect, as in Zimbabwe – or draw new legitimacy from the political views associated with it because of its supporters – and thus tyrannically endeavor to dress policies in the sanctity of eternal law, as in Iran. The Supreme Court has a duty to save the U.S. judiciary and the Constitution from both fates.
