II. Origin and Meaning of Judicial Review

Although the Constitution does not explicitly provide for judicial review, as one would expect for so obviously dangerous an innovation, that it would result was assumed and objected to by populist opponents of ratification⁵

and defended by the more aristocratic Alexander Hamilton.⁶ The great defect of democracy, Hamilton thought, along with James Madison,⁷ was that debtors, always much more numerous than creditors, would soon realize that majority rule puts the means of escaping their financial obligations in their own hands. The most significant limitation on state power in the original Constitution, the Contracts Clause,⁸ was the founders' attempt to correct this defect by prohibiting the enactment of debtor-relief laws. Hamilton saw judges, presumably lawyers grown prosperous primarily through protection of property interests, as natural bulwarks against dangerous egalitarian-redistributionist democratic tendencies. He therefore insisted that judges should be appointed, rather than elected, and given lifetime tenure.⁹ More important, he rationalized and defended giving them the power of constitutional judicial review by denying that it would make them superior to legislators.¹⁰ Hamilton's equally property-protective acolyte, Chief Justice John Marshall, created an opportunity to exercise, and thereby securely establish, this power in the famous case of Marbury v. Madison in 1803.¹¹

The plaintiffs in Marbury brought suit directly in the Supreme Court, supposedly to have the Court order the Jefferson Administration to issue their “commissions” entitling them to positions of justice of the peace in Washington, DC. Although Marshall, as Secretary of State in the Adams Administration, had been directly responsible for the nondelivery of the commissions, he did not recuse himself from hearing the case. Instead, he took the opportunity gratuitously to chastise his political enemy, President Jefferson, as a violator of plaintiffs' rights, only to conclude that the Court lacked jurisdiction in the matter. He reached this conclusion, first, by imaginatively interpreting a statute as adding to the original jurisdiction granted the Court in the Constitution, and then by holding, also imaginatively, that the grant implied a prohibition of Congress's adding to the Court's original jurisdiction. The result was a victory for Jefferson, which precluded any challenge to the decision and spared the Court the embarrassment of issuing an order that he surely would have ignored. Judicial review was thus established in a made-up ruling, on the basis of a made-up statutory interpretation and made-up constitutional prohibition, and based on reasoning no one has found persuasive.¹²

Judicial review, born in sin, has rarely risen above the circumstances of its birth.

Through most of U.S. history, judicial review served, as Hamilton and Marshall expected, as a conservative force, protecting property rights and economic freedom and putting a brake on social change. Among the Court's most important uses of the power were decisions invalidating a prohibition on the spread of slavery,¹³

a federal statute that prohibited race discrimination in places of public accommodation,¹⁴ statutes that sought to restrict the employment of child labor,¹⁵ and various elements of President Franklin Roosevelt's New Deal.¹⁶ The Court's invalidation of state laws served primarily to protect creditors¹⁷ and, during the “Lochner era,” to combat price and wage controls, labor laws, and other “socialistic” legislation.¹⁸

The policymaking role assumed by the Supreme Court changed drastically with its 1954 decision in Brown v. Board of Education (holding school segregation unconstitutional),¹⁹

which was quickly followed by decisions striking down all official racial discrimination.²⁰ The decision in Brown v. Board of Education convinced many people of the superiority of policymaking by unelected judges on the basis of “principle” over policymaking by elected officials. If the Court could decree racial oppression impermissible, what other advances in morality could it not require, and if it could, why should it not do so? The result was to change judicial review from a brake upon to, instead, the nation's primary initiator and accelerator of social change. The result, incredible as it may seem in a nation supposedly based on representative self-government, federalism, and separation of powers, is that almost every important change in domestic social policy over the past half-century on a vast array of issues has come not from elected legislators, state or federal, but from the justices of the United States Supreme Court, in the guise of constitutional interpretation. Issues that the Court removed from the ordinary political process and assigned for decision to itself include abortion, capital punishment, criminal procedure, legislative reapportionment, prayer in the schools, government aid to religious schools, public display of religious symbols, religious exemption from ordinary legal requirements, busing for school racial balance, restriction of pornography, limits on street demonstrations, vagrancy control, libel law, and classifications on the basis of sex, illegitimacy, or alienage.²¹

Two things characterize the resulting constitutional law. The first is that it has very little to do with the Constitution, as should be clear enough from the fact that so little of the Constitution is usually even purportedly involved. The great majority of rulings of unconstitutionality invalidate state, not federal, law, and nearly all of these rulings purport to turn on a single sentence, ultimately four words, from the Fourteenth Amendment: “due process” and “equal protection”. By detaching these phrases from their historical context and meaning—as guarantees of basic civil rights to blacks—the Court has made them empty vessels into which any meaning may be poured. The result has been the creation of a “living” Constitution, changeable as new conditions are seen by judges to require, and, therefore, no constitution of fixed limits at all, but, instead, a warrant for judges to assign to themselves final policymaking authority on any subject they might choose.

No jurisprudential sophistication is required to understand that the states did not lose the right to restrict abortions in 1973²²

because the Court discovered in the Due Process Clause of the then 105-year-old Fourteenth Amendment something that had not been noticed before. Another example of the Constitution's irrelevance to constitutional law is the fact that there has been a time when it permitted, a time when it prohibited, and a time (the present) when it sometimes requires the assignment of students to public schools on the basis of race,²³ without the Constitution being changed in any relevant respect. All that changed or had to change was the judges making the decisions; a natural scientist would have no difficulty concluding that the Constitution is not the operative variable. Scholarly debates on methods of constitutional interpretation are, therefore, of no real relevance to the Court's controversial rulings of unconstitutionality, because in none of them has any question of interpretation in fact been involved.

The second distinguishing characteristic of the Court's controversial rulings of unconstitutionality is that they have not been random in their political impact, sometimes favoring the Right and sometimes the Left. They have almost always—for example, on every one of the issues noted above—invalidated a policy choice reached in the ordinary political process, only to substitute a choice more to the left on the American political spectrum, the choice advocated by, for example, the American Civil Liberties Union (ACLU), America's paradigmatic constitutional litigator. Although it does not always win, it would be only a small exaggeration to say that the ACLU never loses in the Supreme Court. The ACLU usually either obtains a policy decision it could not obtain through the ordinary political process, such as a prohibition on state-sponsored prayer in the schools, or it is left where it was to try again on another day.²⁴

This, of course, is not a fortuity. Virtually by definition, it is liberals, not conservatives, who seek to overturn traditional American morality, practices, and institutions, and, therefore, it is liberals who are most in need of judicial power to defeat the popular will.

The salient fact of contemporary American political life is the wide gap in views on social policy issues that exists between, on the left, a cultural elite made up of academics and their progeny in the media and other verbal professions and, on the right, a large majority of the American people. Judges, state as well as federal, are all or almost all educationally, economically, and socially themselves members of the elite, solicitous of its approval, and irresistibly tempted to use their power to advance its policy preferences.²⁵

The result is that constitutional law in the past half-century has been little more than a ruse by means of which judges enact liberal policies that would not and could not be enacted by elected legislators. Despite anguished cries by liberal constitutional scholars that we now have a “conservative” Court,²⁶ the activism of the Rehnquist Court continues to be predominantly activism of the Left.

For a court to be “conservative,” according to liberal constitutional scholars, it is not necessary that it give conservatives positive victories comparable to major liberal victories. Thus, to be labeled “conservative,” the Court does not have to hold that permitting, rather than restricting, abortion is unconstitutional, or that failing to provide rather than providing for prayer in public schools is unconstitutional. Nor is it even necessary that the Court rescind prior liberal victories by, for example, overruling decisions creating abortion rights or prohibiting provision for prayer in public schools and returning the issues to the ordinary political process. For the Court to be “conservative” according to liberals, it is quite enough that liberal victories come less surely or quickly.

The Rehnquist Court has not only failed to positively protect the unborn child by holding laws permitting abortion unconstitutional or even to return the issue to the states by simply overruling Roe v. Wade, but, instead, it has extended Roe even to so-called partial birth abortions.²⁷

Instead of moving from a prohibition to a requirement of state-sponsored school prayer or even merely rescinding the prohibition, the Rehnquist Court has extended the prohibition even to a nonsectarian invocation of the deity at a middle school graduation ceremony.²⁸ Instead of overruling or merely relaxing the Burger Court's disallowance of distinctions on the basis of sex, the Rehnquist Court has extended it even to military schools.²⁹ Instead of overruling Miranda³⁰ and its exclusionary rule, the Rehnquist Court invalidated a congressional attempt to limit its application.³¹ Instead of overruling Mapp v. Ohio³² and its exclusionary rule, the Court continues to expand the notion of unconstitutional searches and seizures to include, for example, pointing a heat-sensing device at the exterior of a building³³ and having a drug-sniffing dog walk around an automobile.³⁴ The Court has held that the people of Colorado may not by referendum amend their state constitution to preclude the grant of special rights to homosexuals,³⁵ has invalidated federal attempts to restrict child pornography,³⁶ and has overturned state laws imposing term limits on their congressional representatives.³⁷ The Court continues its march toward the total abolition of capital punishment, and, most recently, the Court has upheld race preferences in admissions to a state law school and invalidated state sodomy laws.³⁸ In quantity as well as importance, a large majority of the Rehnquist Court's rulings of unconstitutionality continues to favor liberal causes.³⁹

If a Court that continues to produce such an impressive string of important liberal victories can be characterized as “conservative,” one must wonder what a liberal Court might do. The Rehnquist Court can be denounced as conservative by liberals only because liberal victories are seen as the norm, virtually the entire point of judicial review and constitutional law, while an occasional conservative victory—such as a few rulings of unconstitutionality in federalism,⁴⁰

just compensation,⁴¹ and race preference cases⁴²—is seen as an aberration, a disruption of the natural order.

III. Selecting Judges

State constitutional law usually follows and often expands on federal rulings of unconstitutionality, and this is why it remains of crucial importance to liberals that state judges, like federal judges, not be subject to elections, or if they are, that the elections be made ineffective. Following the federal model, the states originally selected judges by appointment with lifetime tenure.⁴³

In every state, the judges, also following the federal model, asserted the power of constitutional judicial review, despite the fact that no state constitution, any more than the federal Constitution, explicitly made provision for it.⁴⁴ As the policymaking power of judges became more clear, a movement arose, especially in the more populist Jacksonian era (1828–37), for the codification of laws to limit judicial discretion and, more importantly, for the selection of judges by popular election.⁴⁵ Because the power of constitutional judicial review inevitably makes judges the ultimate legislators, this result can be avoided only by abolishing the power. An unreasoning tendency to emulate federal practice, however, apparently has been too strong to permit such an obvious conclusion. Instead, most states have in effect decided to accept the fact that their judges are legislators and to subject them, like other legislators, to some form of popular election.

Today, thirty-one states choose all or some of their judges by election, and fifteen, including California, have adopted some form of the so-called merit or Missouri plan, in effect subjecting appointed judges to popular recall by requiring them to stand for an uncontested “retention” election after a period of service.⁴⁶

Each state that has judicial elections has them by reason of the state constitution or a statute, and all but four also have codes of judicial conduct, imposed by the judges themselves and enforced by penalties up to and including disbarment.⁴⁷ Put forth in the name of protecting judicial independence, impartiality, and the appearance of impartiality, the actual purpose and effect of the codes is to protect judicial policymaking power, which almost always means in practice the power to enact liberal social policies by rulings of unconstitutionality. The codes do this by restricting the speech of judicial candidates, the principal effect of which is to preclude conservative candidates from taking advantage of the unpopularity of those rulings by criticizing them in election campaigns.

Judicial candidates have been censured or threatened with censure most often, apparently, for seeking to announce “pro-life” views on the abortion issue;⁴⁸

for wanting to speak on “capital punishment, … the state's budget, and public school education”;⁴⁹ for accusing an opponent of seeking to “require the State to license same-sex marriages,” criticizing “traditional moral standards,” and calling “the electric chair ‘silly’ ”;⁵⁰ for using voter guides published by the Christian Coalition of Alabama;⁵¹ for stating that “the state simply doesn't get a fair trial in [opponent's] court,” and opponent “would have lowered indigent standards”;⁵² for claiming to be “tough” while accusing an opponent of being “soft” on crime;⁵³ for stating that as a judge he “would not accept plea bargaining”;⁵⁴ and for wanting to state his belief as to “the limits on the conduct and discretion of a sitting judge.”⁵⁵

Restrictions on judicial campaign speech have recently come under attack in several states, however, and have generally fared badly in the lower courts.⁵⁶

Republican Party of Minnesota v. White was the exception.⁵⁷ Restrictions were upheld in the lower courts, only to be disallowed by a 5–4 decision of the U.S. Supreme Court.

IV. Republican Party of Minnesota v. White

The Minnesota Constitution has provided for the election of state judges from the time the state entered the union in 1858. In 1974, the Minnesota Supreme Court promulgated a Code of Judicial Conduct based on the Model Code of Judicial Conduct adopted by the American Bar Association (ABA) two years earlier. One provision, known as the “announce clause,” prohibited a candidate for judicial office, including an incumbent, from “announc[ing] his or her views on disputed legal or political issues.”⁵⁸

In 1996, when Gregory Wersal campaigned for the position of associate justice of the Minnesota Supreme Court, a complaint was filed with the agency charged with enforcing the code. The complaint objected to statements in his literature that were critical of some Minnesota Supreme Court decisions. Although the complaint was dismissed by the agency, at least in part because of doubts as to the code's constitutionality, Wersal withdrew his candidacy, “fearing that further ethical complaints would jeopardize his ability to practice law.”⁵⁹

As usual, the speech to be suppressed was critical of liberal rulings of unconstitutionality. Candidate Wersal did not want to criticize the Minnesota Supreme Court for being insufficiently protective of the interests of women seeking abortions, of criminal defendants, or of the poor. There is usually no electoral advantage in that, because those are the “politically correct” views of the elite, not of most people. On the contrary, he wanted to criticize the court as being activist, pro-abortion, soft on criminals, and overly protective of welfare benefits,⁶⁰

that is, for being on the elite side of the cultural divide. These issues involved, of course, major liberal causes and standard conservative complaints. The practical purpose and effect of the announce clause was to protect the power of Minnesota's judges to advance such causes by prohibiting politically effective conservative criticism of their decisions.

Although Wersal might have been sanctioned for criticizing the Minnesota Supreme Court's liberal decisions, the enforcement agency, as if to add insult to injury, provided him with a list of topics that he would be permitted to discuss. These included “how he proposes to ensure that minorities and women are treated more fairly by the court system”⁶¹

and possible “remedies for race and gender bias.”⁶² That is, he was told that he was free, indeed encouraged, to promote precisely the politically correct liberal causes he had sought to publicly criticize. The part of the political spectrum occupied by the people who created and enforced this arrangement was not, one may be sure, the part occupied by Wersal, yet they would have forced him to act as if it were and to espouse the very policies to which he objected. Perhaps nothing better illustrates the tendency of liberals to see their own political choices as incontrovertible, making it seem appropriate to them that objectors be silenced or, still better, coerced into advocating liberal views.

In 1998 Wersal campaigned for the office again, and sought but was unable to obtain an advisory opinion from the enforcement agency as to whether the “announce clause” would be enforced. He then brought suit in federal district court against the agency, referred to as the Lawyers Board, seeking a declaration of the clause's invalidity under the federal Constitution and an injunction against the clause's enforcement. The Minnesota Republican Party joined the suit as plaintiff, claiming that Wersal's inability to state his views on legal issues left the party unable to decide whether to support his candidacy. The district court granted summary judgment for the defendants, and a divided Court of Appeals for the Eighth Circuit affirmed.⁶³

The U.S. Supreme Court granted certiori and reversed. The solid liberal bloc made up of Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer predictably voted to protect judicial power by upholding the restrictions, and Justices Sandra Day O'Connor and Anthony Kennedy separately joined Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas in voting to invalidate. Scalia wrote the majority opinion; O'Connor and Kennedy wrote concurring opinions; Ginsburg wrote the principal dissent, and Stevens a shorter one, each dissenter joined by the other as well as by Souter and Breyer.

V. Judicial Integrity and Impartiality

Much more obvious and serious than any failure by the majority of the Court to recognize the difference between judges and legislators is the willingness of the dissenters to pretend not to know that in the United States judges, and the dissenters themselves above all, act not only as legislators, but as super-legislators. Their unembarrassed assertion of the patently false—the “noble lie” of constitutional law—demonstrates how little there is of the judicial integrity they claim to be concerned to protect. They are able to make such an assertion only because of a general understanding and acceptance by commentators on constitutional law, and by no one more clearly than the judges themselves, that the ordinary standards of accuracy and candor applicable in serious argument are not applicable to constitutional law. Constitutional law exists in a world of “let's pretend,” entirely dependent on the willingness of defenders of judicial review to assert the falsehood that the justices' rulings of unconstitutionality derive from something other than their personal policy preferences. Except for this convention, the entire structure of constitutional law would crash to the ground, seen as the elaborate ruse that it is for the substitution of the elite's policy preferences for those of the majority. The nightmare of the cultural elite would follow: public policymaking in the hands of the American people, with such consequences as a freer use of capital punishment, prayer in schools, and restrictions on pornography and abortion. Who, the elite may ask, would want to live in a world like that?

Nor is the dissenters' performance likely to inspire public belief in judicial impartiality. Involved in White was a dispute in which one side was seeking the right to criticize pro-abortion judicial decisions, while the other was seeking to suppress such criticism and to encourage instead discussions of “race and gender bias” and how to ensure better treatment of women and minorities. Suppose now that a disinterested observer familiar with Justice Ginsburg's lifelong advocacy of feminist causes had been asked to predict how she would likely vote. How likely would he have been to consider it necessary to acquire a deep understanding of her views on the First Amendment? If the disinterested observer was also familiar with the fact that Justices Stevens, Souter, and Breyer almost always vote with Ginsburg on the liberal-elite side of issues that reflect the cultural divide, perhaps most certainly where what is seen as a feminist issue is somehow involved, he would have had little difficulty in predicting Ginsburg's vote and at least three others, again with no need to consider the First Amendment. The predictable and near-perfect alignment of the dissenters' votes with the dictates of a particular political ideology tells us more about judicial impartiality than their claim to be concerned to protect it.¹⁰⁶

Far from being necessary to protect judicial integrity or to preserve public faith in judicial impartiality, as the dissenters claimed, silencing criticism of liberal judicial policymaking is likely to have the opposite effect. It is likely to encourage judges to engage wrongfully in even more such policymaking, which will make their lack of impartiality even more obvious, if possible. In any event, where, as in White, judicial rulings of unconstitutionality on basic social policy issues, such as abortion, are implicated, there is ordinarily very little judicial impartiality or public belief in judicial impartiality to protect. If judges did in fact what they invariably claim to do—enforce constitutional prohibitions—rulings of unconstitutionality would be so rare as to be of little consequence,¹⁰⁷

and there would be little demand for judicial elections. An activist judge, one who makes rulings of unconstitutionality not clearly required by the constitution he is purporting to enforce, is by definition not a person of integrity even if he has convinced himself that his robe has made him a superior person entitled to coercively instruct elected legislators and his other fellow citizens.

As for a state's interest in protecting the public's belief in judicial impartiality, it is unlikely that many concerned persons, at least those on the losing side of rulings of unconstitutionality, have such a belief. To the extent that any do, the state's interest, as already noted, should be to see that they are better informed. It is unlikely that such a belief can be found, for example, among the people of Colorado who had their decision to preclude special rights for homosexuals overturned by the Supreme Court on the ground that it could only be based on irrational “animus.”¹⁰⁸

Nor is a belief in judicial impartiality likely to be found among the citizens of Hialeah, Florida, who were told that their attempt to ban animal sacrifice could only be a product of religious prejudice.¹⁰⁹ It is not likely to be found among the millions of persons who consider abortion, or at least so-called partial birth abortion, akin to murder but are told that a fundamental right to abort miraculously appeared in the Constitution in 1973.¹¹⁰

Belief in judicial impartiality is also not likely to be found among parents across the United States who have been subjected to court orders requiring that their children, because of their race, be excluded from their neighborhood schools and transported to more distant schools in a futile attempt, destructive of public school systems, to compel integration under the guise of “desegregation.”¹¹¹

The fact that courts could and did in the busing cases impose on school districts a requirement of racial discrimination in the name of enforcing a prohibition of such discrimination and in blatant defiance of the 1964 Civil Rights Act, America's greatest civil rights statute, gives reason to believe that judges may be the least impartial or trustworthy of government officials.¹¹² This should hardly be surprising given that America's judges are all lawyers, skilled only in the manipulation of language to reach predetermined ends and, more important, the public officials least subject to electoral accountability.

Judges of the highest state courts may, of course, be even more willing to engage in liberal activism than federal judges, as the California Supreme Court demonstrated by holding capital punishment, unequal school district funding, and racially unbalanced schools unconstitutional.¹¹³

Other illustrations include the recent spate of state supreme court opinions finding constitutional violations in the failure of state legislatures to recognize “same-sex marriage”¹¹⁴ and the war many state courts are conducting against tort reform. Tort reform is not only strongly opposed by the trial bar because it would mean less litigation and less remuneration for trial lawyers, it is also equally strongly opposed by activist judges because it would somewhat lessen their policymaking opportunities. Some element of tort reform legislation has already been invalidated in no fewer than twenty-six states, a further demonstration of judicial review operating against the public good.¹¹⁵

The great bulk of state court rulings of unconstitutionality, no less than the Supreme Court decisions that created a “right of privacy” on the basis of “penumbras, formed by emanations”¹¹⁶

from the Constitution or that abolished traditional legal distinctions based on illegitimacy by invoking the authority of Edgar the Bastard in King Lear,¹¹⁷ demonstrate not integrity or impartiality, but judicial contempt for both law and public opinion. Reciprocating this contempt, most concerned people understand or should be brought to understand, is the only appropriate reaction. Permitting candidates for judicial office to criticize liberal activism is not likely to increase that justified contempt, but might provide citizens an occasion and incentive to act on it.

VI. Does the First Amendment Permit Abolishing Judicial Election Campaigns but Forbid Restricting Judicial Election Campaign Speech?

That the purpose and effect of the announce clause was to protect the power of Minnesota judges to continue to enact liberal policies over popular opposition does not mean, however, that it is unconstitutional. If a state may constitutionally abolish judicial elections, as Justice Scalia conceded, totally eliminating the possibility of judicial campaign speech, it is not clear why it may not constitutionally hold elections in which campaign speech is restricted. Even accepting the incorporation fiction that makes the First Amendment applicable to the states as well as to the federal government¹¹⁸

and assuming, contrary to fact, that “freedom of speech” has sufficiently ascertainable meaning to be considered a provision of law,¹¹⁹ how can the First Amendment be understood to prohibit restricting speech in elections that could simply be abolished, with the result that there would be less rather than more speech?

Justice Scalia's bald assertion that a state may not leave “the principle of elections in place while preventing candidates from discussing what the elections are about,” seems to have less to do with protecting speech than with preventing the state from engaging in some kind of chicanery. The state, he seems to be saying, can have no judicial elections, but not watered-down or restricted judicial elections. Perhaps some such prohibition can be derived from a statute like the Federal Trade Commission Act that prohibits certain “deceptive acts or practices,”¹²⁰

but it is hard to see how it can be derived from the First Amendment. Subjecting judges to even severely restricted elections would seem to be at least marginally better in terms of facilitating speech and limiting judicial power than, as in many states, granting judges lifetime tenure with no elections at all. As an originalist, Justice Scalia cannot conclude that the Constitution prohibits deception simply because it ought to be prohibited. How, then, can he have the Court in the name of the First Amendment set itself up as a kind of Federal Trade Commission for judicial election campaigns?

Nor can it really be claimed, as Justice Scalia did, that the White result was logically compelled by precedent.¹²¹

Lawyerly skill in making distinctions is usually quite adequate to escape the requirements of precedent. The Court had never before considered the precise question of restricting judicial candidate speech, and one more vote for the dissenters would have shown that the precedents were for that reason easily distinguishable, as the court of appeals had found.

Perhaps, however, White is the rare case where judicial activism—a ruling of unconstitutionality not clearly required by the Constitution—can be defended, following John Hart Ely, on the ground that it actually furthers democracy¹²²

or, appeasing Alexander Bickel, that it is actually pro- rather than anti-majoritarian.¹²³ The Minnesota Supreme Court judges promulgated the announce clause to vitiate the effect of elections required by the “popularly approved” Minnesota Constitution and to protect their power to frustrate democracy. If judicial activism is ever justified, surely it is most easily so, as some have argued in defense of Bush v. Gore,¹²⁴ when used to defeat judicial activism.¹²⁵ But could not the Minnesota legislature defend the Minnesota Constitution and reject the self-serving antidemocratic act of the Minnesota Supreme Court? Or does the legislature have too many lawyers with a professional interest in enhanced judicial power for that to be a realistic possibility?

The answer, if we in fact believe in popular government and federalism, has to be that resolution of the problem should have been left for the people of Minnesota, not five U.S. Supreme Court justices. It just happens to be the case that nothing in the U.S. Constitution prohibits Minnesota's method of selecting its judges. The lawyers in the Minnesota legislature may have been self-interested in letting the announce clause stand, but to accept that the U.S. Supreme Court has a roving commission to see that all laws are in the public interest, whatever that may be, is to give up on self-government.