The opinion in Bauer v. Shephard is likely to be quite influential, though it does not break much new doctrinal ground. Judge Easterbrook’s writing is clear and strong, and other courts could well decide to follow it. I found this sentence on page 16 particularly important: “Allowing judges to participate in politics would poison the reputation of the whole judiciary and seriously impair public confidence, without which the judiciary cannot function. Preserving that confidence is a compelling interest. No one could contemplate with equanimity the prospect of a state’s chief justice also being the head of a political party and doling out favors or patronage, or deciding who runs for legislative office. States are entitled to ensure not only that judges behave in office with probity and dignity, but also that their conduct makes it possible for them to serve impartially.”
I did note one error, though. Judge Easterbrook writes: “It is easy to say that a judge who has a financial stake in the outcome is not impartial. But how about a judge who receives a campaign contribution from one side? A big campaign contribution? A whopping campaign contribution? See Caperton ($3 million from one donor, more than all other contributions combined).” In fact, in Caperton, the judge received very little in contributions from the later litigant. Almost all the money was contributed by the litigant to an independent expenditure committee. (Justice Kennedy makes a similar erroneous statement of fact in Caperton, and I discuss that point in this forthcoming paper.)