Protecting free speech of state judicial candidates has not hurt court legitimacy

Campaign donations, attack ads diminish faith in objective court system

A 2002 U.S. Supreme Court decision protecting the right of judicial candidates to speak freely about controversial issues opened the door for state judicial election campaigns to become increasingly nasty, bitter and politicized. However, the Court’s decision has not directly damaged the court system’s legitimacy in the eyes of citizens, suggests a new study from Washington University in St. Louis.

“While it is certainly true that judicial campaigns have become vastly more costly and more focused on legal and political issues, practically no rigorous evidence has been produced to document the alleged decline in the legitimacy of courts,” suggests James L. Gibson, Ph.D., study author and the Sidney W. Souers Professor of Government in Arts & Sciences at Washington University in St. Louis.

James Gibson
James Gibson

Gibson’s findings, to be published in a forthcoming issue of the American Political Science Review, may come as a surprise to legal observers, including former Justice Sandra Day O’Conner, who publicly expressed reservations about her majority decision in the case, known as Minnesota v. White.

Under the ruling, state laws forbidding candidates from discussing issues that might come up in future court cases were found to be unconstitutional restrictions of free speech.

O’Connor and others worried that the decision might well have unfortunate consequences, causing judicial elections in American states to become so politically tarnished that the very legitimacy of the court system would be undermined in the eyes of voters — can a judge who “panders” to special interests with campaign speeches on “gays, guns and God” be trusted to remain objective when related issues come before the court?

“My analysis indicates that the alarmists are most likely wrong in their concern about perceived judicial impartiality being undermined,” Gibson said. “When citizens are exposed to issue-based speech from candidates for judicial office, court legitimacy does not suffer. Indeed, I can find no evidence whatsoever to vindicate the critics of Minnesota v. White. It seems that many Americans are not at all uncomfortable when candidates for the bench tell them how they feel about the sort of socio-political issues coming before courts these days.”

Gibson bases his conclusions on a comprehensive survey of attitudes among a representative sample of residents in Kentucky, one of the nation’s hotspots for bitter judicial election campaigns in recent elections. Some of his additional results are, however, more ominous.

“Although judicial free speech seems not to threaten legitimacy, the study shows that campaign contributions do,” Gibson says. “Contributions to candidates for judicial office imply a conflict of interest in the eyes of ordinary citizens, even a quid pro quo relationship between the donor and the judge, which undermines perceived impartiality and legitimacy.”

However, as Gibson points out, there is nothing distinctive about the judiciary on this score: Campaign contributions to candidates for the state legislature also imply a conflict of interest and therefore can also detract from the legitimacy of legislatures.

Not surprisingly, his study documents other unfortunate parallels between judicial and legislative elections when it comes to campaign advertising.

“The experiment also indicates that attack ads undermine both judicial and legislative legitimacy,” Gibson adds. “The effect is not nearly as great as that observed for campaign contributions, but citizens exposed to such negative advertisements during campaigns extend less legitimacy to the political and legal institutions involved.”

The bottom line, Gibson suggests, is that his study confirms that the Supreme Court majority in Minnesota v White was correct in discounting the undesirable consequences of free speech by candidates for judicial office. Preserving the free speech rights of state judicial candidates has not directly diminished America’s view of the court system as fair, objective, and impartial.

Editor’s Note: This research has been supported by the Law and Social Sciences Program of the National Science Foundation (SES 0451207).

Suggested citation: Gibson, James L., “Challenges to the Impartiality of State Supreme Courts: Legitimacy Theory and ‘New-Style’ Judicial Campaigns.” American Political Science Review, Forthcoming Available at SSRN: