Symposium: The Justices’ premises about judicial elections

In itself, the Supreme Court’s decision in Williams-Yulee v. The Florida Bar probably will have limited effects. The Court’s acceptance of state rules that prohibit personal solicitation of campaign contributions by candidates for judgeships is unlikely to enhance public confidence in the impartiality of judges much, if at all. Nor is that acceptance likely to inhibit fundraising by judicial candidates to any great degree. For that matter, the decision’s impact on the scope of free speech seems minimal. Yet the Court’s decision has implications for other issues concerning the regulation of elections, and those implications probably help to account for the close vote on the case. With the decisive exception of Chief Justice John Roberts, who wrote the Court’s opinion, the five-to-four vote was along ideological lines — liberals voting to uphold the Florida rule, conservatives voting to strike it down.

Two earlier decisions about judicial elections, also decided by five-to-four votes, featured even sharper ideological divisions. In Republican Party v. White (2002), the Court’s conservatives voted to overturn a Minnesota rule that prohibited judicial candidates from announcing their “views on disputed legal or political issues,” while its liberals dissented from that ruling. In Caperton v. A. T. Massey Coal Co. (2008), the Court’s liberals and Justice Anthony Kennedy held that due process required a state supreme court justice, who had benefited from $3 million in independent spending by the head of a coal company, to recuse himself from a high-stakes case in which the company was a litigant. The four most conservative Justices dissented.

In none of these three cases did the issues have clear connections with the broad values that arguably underlie conservatism and liberalism. Rather, to a considerable extent the divisions within the Court seemed to reflect the perceived political (and partisan) implications of the competing positions. At least in part, the Justices’ positions in White likely stemmed (perhaps unconsciously) from the partisan identity of the challengers to the Minnesota law and the Justices’ perceptions that issue-based campaigns for judgeships tend to favor conservative candidates. Similarly, the line-ups of the Justices in Caperton and Williams-Yulee may have been largely a byproduct of the deep disagreements between liberal and conservative Justices over legal constraints on the role of money in political campaigns. In turn, those disagreements stem to a degree from expectations about which political party and which segments of society benefit the most from a loosening of those constraints. White and Williams-Yulee are also part of the broader process in which conservative and liberal positions on the First Amendment are being redefined within and outside the Court, a process that also reflects perceptions of the prospective beneficiaries of pro-speech policies.

But whatever the actual sources of the Justices’ positions in these three cases were, the premises on which their opinions in Williams-Yulee and its predecessors were built are important in themselves. Of particular interest to me are the premises about the judicial process and about judicial elections that can be discerned from the Justices’ opinions, premises that were sometimes laid out explicitly.

In White and Caperton, the two sides offered quite different judgments about partiality or bias in judicial decision making. Justice Antonin Scalia’s majority opinion in White focused on partiality in the form of pre-existing judgments about legal issues that a court addresses. In his view such partiality is inevitable and benign, so there is no point in trying to limit it at the cost of First Amendment values. In contrast, Justice John Paul Stevens’s dissent expressed concern about partiality arising from electoral considerations, and he suggested that announcements of positions on legal issues by successful judicial candidates undercut their impartiality on the bench.

In Caperton the issue was a source of partiality that is difficult to see as benign — the effect of campaign contributions on judges’ judgments in cases. Justice Kennedy’s majority opinion emphasized the extraordinary circumstances of the case and argued that the risk of bias under those circumstances is so great that a judge’s recusal is required. The dissent by Chief Justice Roberts pointed to the variety of ways that campaign contributions, other forms of electoral support, and even personal friendship might create concerns about bias. Since so many possible sources of bias exist, he implied, it was artificial and problematical to focus on a single one.

The Justices might have considered judicial bias in yesterday’s decision as well. But instead they focused almost entirely on public perceptions of partiality, perceptions that had been a secondary concern in some of the opinions in White and Caperton. This was not an obvious choice: if direct solicitation of contributions by judicial candidates does harm to the judiciary, that harm seems more likely to come from a sense of obligation on a successful candidate’s part than from damage to public confidence in the judicial branch. (Another potential harm, putting undue pressure on people to contribute to judicial candidates, was peripheral to the case.) Perhaps this choice reflected the view of the Justices in the majority that the Florida regulation could best be defended on the ground of public perceptions. In light of his position in Caperton, Chief Justice Roberts may have felt that bias can arise from so many sources that the effects of direct solicitation are not very important to judicial decision making.

The opinions in Caperton did not directly address the practice of electing judges, but the opinions in White did so. The dissenting opinions by Justice Stevens and Justice Ruth Bader Ginsburg argued that states have a legitimate interest in differentiating between elections to judgeships and elections to other offices, because judgeships are different. As Stevens put it, the Court did not “have to put States to an all or nothing choice of abandoning judicial elections or having elections in which anything goes.” Justice Scalia’s majority opinion agreed that states could treat judicial elections differently, but the opinion was more skeptical than the dissents about regulations that are based on differences between judgeships and other elected positions. Justice Sandra Day O’Connor’s concurring opinion expressed her distaste for judicial elections, in part because of what she saw as their undermining of impartiality. But she also suggested that a state’s decision to use judicial elections limits its power to treat those elections differently from elections to other offices.

This disagreement was reproduced, though less explicitly, in Williams-Yulee. The weight that Chief Justice Roberts gave to preserving public confidence in the judiciary led to a relatively sympathetic assessment of state regulations that are specific to judicial elections. Justice Ginsburg’s concurring opinion, like her dissenting opinion in White, underlined what she saw as the desirability of allowing states to regulate judicial elections in distinctive ways. In the primary dissenting opinion, Justice Scalia reiterated his position that states could treat judicial elections differently from other elections. But as in White, the overall spirit of his opinion on the justifications for such differential treatment diverged from that of the opinions on the other side. Justice Kennedy’s shorter dissenting opinion indicated more directly his disagreement with the majority’s view of the distinction between judicial elections and elections to other offices.

Taken together, these two points of disagreement between the Court’s liberals and its conservatives in the three decisions (with the important exceptions of Kennedy in Caperton and Roberts in Williams-Yulee) suggest different views of the courts. Liberal Justices perceived, approved, and sought to maintain differences between the third branch and the other branches to a greater degree than their conservative colleagues. As suggested earlier, there is no clear connection between the values that underlie conservatism and liberalism and these conceptions of the judiciary. Rather, these differing conceptions appear to stem largely from the contexts in which White and Caperton arose and from the connections between Caperton and Williams-Yulee and regulation of campaign funding in general. Unless those contexts and connections change substantially, the current ideological division on the Court over the regulation of judicial elections will carry over into any future decisions on the validity of such regulations.

Lawrence Baum is a professor emeritus in the Political Science Department at Ohio State University. Baum’s primary interest is in courts in the United States. The primary focus of his research has been the explanation of judicial behavior in decision-making. His many books include The Supreme Court (11th ed., 2012) and American Courts: Process and Policy (2012).

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