Judicial Endorsements and the First Amendment: The Implications of the Ohio Supreme Court’s Holding That the Canon of Judicial Ethics Rule Barring Such Endorsements Is Unconstitutional

Over fifteen years ago, The American College of Trial Lawyers (“the College”) issued a white paper opposing contested elections for the selection and retention of judges in all instances.^[1]  Asserting that “the ‘appearance of impartiality’ is critical to judicial independence,” the College argued that “contested judicial elections, including retention elections, create an unacceptable risk that improper and deleterious influences of money and politics will be brought to bear upon the selection and retention of judges.”

Despite the College’s concern, the number of states having contested judicial elections has increased since then^[2], and courts have expanded the constitutional right of judicial candidates to express their views on topical issues as long as they do not involve matters that are before the court or likely to become so.^[3] Until now, however, all states have adopted and enforced a version of Rule 4.1(a)(3) of the American Bar Association (“ABA”) Canons of Judicial Ethics which holds that “a judge or judicial candidate shall not . . . publicly endorse or oppose a candidate for any public office” unless it is the same judicial office for which he or she is running (the “Endorsement Rule”).  The College strongly supports the Endorsement Rule as crucial to ensuring the independence of the judiciary by insulating judicial selection from the political process.

The unanimous acceptance of the Endorsement Rule changed unexpectedly in a recent decision by the Ohio Supreme Court.  In that case, the Court dismissed a disciplinary sanction against a judge for endorsing a candidate for a judicial position and determined—without being asked and without the issue being briefed by the parties—that the Endorsement Rule violated the First Amendment to the United States Constitution. Disciplinary Counsel v. Rudduck, Slip Opinion No. 2026-Ohio-1126 (Apr. 2, 2026)

While the Ohio Supreme Court’s decision has so far been an outlier, in recent months constitutional challenges have been brought against the Endorsement Rule in two other states. Although neither of these challenges succeeded, the College is concerned that, if courts in other states follow the Ohio Court’s reasoning and find the Rule unconstitutional, it will eliminate a crucial check on the appearance of impartiality and undermine the public’s confidence in the independence of the judiciary.  In this White Paper, we trace the development of Rule 4.1 and its underpinnings, review the Ohio Court’s decision and discuss the troubling implications of the decision.

To download the White Paper, click on the “Get the Resource” button at right