They’re brewing a strange brand of strict scrutiny up at the Supreme Court these days.
On Wednesday in Williams Yulee v. Florida Bar, the Court upheld Florida’s prohibition on personal campaign solicitations by candidates for judicial office despite the fact that a plurality purportedly applied strict scrutiny – a level of constitutional review that has been described as “strict in theory, but fatal in fact.” Under strict scrutiny, a restriction on speech should survive only when the government can prove that the measure is necessary to serve a compelling interest and that it employs the least restrictive means of doing so.
This level of review usually is fatal – and should be. It is how we keep “the starch in the standards for those moments when the daily politics cries loudest for limiting what may be said,” as Justice David Souter so memorably put it in his concurring opinion in Denver Area Educational Telecommunications Consortium v. FCC (1996). The same is true in the equal protection context. We should learn something from any holding that allows a “compelling interest” to override fundamental liberties. Just ask Japanese Americans who were “interned” during World War II.
So it is for good reason that exceptions to this “fatal in fact” notion of strict scrutiny in First Amendment cases can be counted on one hand and still leave some fingers left over. In Holder v. Humanitarian Law Project (2010), the Court upheld the PATRIOT Act’s ban on providing “material support” to organizations deemed by the government to be affiliated with terrorists using the strictest level of review. The Court likewise applied strict scrutiny in Burson v. Freeman (1992), and upheld an election-day buffer zone that restricted campaigning within one hundred feet of polling places. That’s pretty much it, until the Court’s decision on Wednesday.
Chief Justice John Roberts’s opinion for the Court (and, in particular, his discussion of the level of scrutiny that garnered three other votes), sought to “dispel the notion that strict scrutiny is ‘strict in theory, but fatal in fact.’” Well, let the dispelling begin! As refashioned by the plurality, strict scrutiny is satisfied even when the state’s purpose is vaporous and the means by which the purpose is served is close enough for government work.There is little doubt but that the overriding goal of Canon 7C(1) of Florida’s Code of Judicial Conduct is compelling. It was adopted to protect the integrity of the judiciary by “maintaining the public’s confidence in an impartial judiciary.” Fair enough. No one can argue that the judicial system should lack integrity or that it could long endure if most people doubt its impartiality. Above all, we expect our judges to be honest, unbiased, and fair. But this generalized interest in judicial integrity is far broader than just the issue of personal solicitation addressed in this case.
Chief Justice Roberts explained that in deciding cases, judges are not supposed to be responsive to the preferences of their supporters (as are politicians who serve in other branches); that, in the words of John Marshall, they must strive to be “perfectly and completely independent”; and that “‘the mere possibility that judges’ decisions may be motivated by the desire to repay campaign contributions is likely to undermine the public’s confidence in the judiciary.’”
All of these truisms are, well, true. But this doesn’t explain how an interest in combatting the perception of favoritism that may arise from the signing of a simple fundraising letter can be “compelling” in any state that chooses to make its judges run for office in the first place. Candidate-judges inherently may be perceived as favoring their supporters, lacking perfect independence, and possibly motivated by a desire to repay contributors. The Chief Justice deflects this glaring problem by reciting, mantra-like, that “judges are not politicians.” But by whose definition? Judges may not be typical politicians, but when a state turns them into political candidates, it is hard to complain that the biggest reason people may question their impartiality is the possibility that one of them may sign a fundraising letter.
Anyone who has ever seen a campaign ad for a local judge knows this is true. As usual, John Oliver nails that point by providing examples of hilarious (but depressing) television advertisements for judicial office. With campaign pitches like those, ranging from the merely silly to deeply disturbing appeals to voters’ most punitive instincts, it is hard to imagine that “judicial integrity” can survive any political campaign. Sure, signing a mass campaign letter asking for a small donation, as Lanell Williams-Yulee did, is undignified. But on the list of problems tied to electing judges that erode public confidence in the judiciary, actions like hers don’t crack the top ten.
Chief Justice Roberts’s opinion tries to address this problem by saying it was “reasonable” for the state to conclude that personal appeals for campaign contributions create “a categorically different and more severe risk of undermining public confidence than does solicitation by a campaign committee” (which Canon 7C(1) expressly permits). But he doesn’t explain how Florida reached this conclusion, or how the “reasonableness” of its determination could satisfy strict scrutiny. Instead, the Chief Justice attempts to support this argument with a homey metaphor: “The identity of the solicitor matters, as anyone who has encountered a Girl Scout selling cookies outside a grocery store can attest.”
Lord knows, it’s hard to say “no” to little Penny when she looks up at you and asks in that tiny, tiny voice, “mister, won’t you please buy a box of Thin Mints?” But it’s no easier when Mom does the talking while Penny sits mutely next to her at the card table cradling her Girl Scout cookies in her lap and looking wistful. And that is how Canon 7C(1) works. It may prevent the candidate from asking for a donation, but the would-be judge can be in the room when his campaign manager (which may be his wife or best friend) makes the appeal for money. And he is perfectly free to write thank-you notes or make other gestures of gratitude toward his contributors as well.
In short, Canon 7C(1) imposes a fictitious solution to cure an amorphous problem – and that is not the sort of thing that strict scrutiny is supposed to permit. The Court at least acknowledges the difficulty. Chief Justice Roberts noted that the concept of public confidence in judicial integrity “does not easily reduce to precise definition, nor does it lend itself to proof by documentary record.” But he nevertheless concluded that the rigors of strict scrutiny are not a problem because it is impossible to have a perfectly tailored solution “when the State’s compelling interest is as intangible as public confidence in the integrity of the judiciary.” As Justice Antonin Scalia correctly pointed out in dissent, “[t]his is not strict scrutiny; it is sleight of hand.”
The one saving grace of the Court’s decision is that its impact should be quite limited. The selection of strict scrutiny as the applicable standard of review was not part of the Court’s holding, and was joined only by Justices Breyer, Sotomayor, and Kagan (along with the Chief Justice). At this point it is uncertain how the plurality’s reasoning will influence future decisions applying heightened scrutiny.
The other source of relief is the narrowness of the decision’s reach. The Chief Justice wrote that “[b]y any measure, Canon 7C(1) restricts a narrow slice of speech.” True enough, it does not affect much what candidates for judicial office may say during campaigns, thanks to the First Amendment protections laid down in Republican Party of Minnesota v. White. More importantly, the holding likely doesn’t extend to any category of speakers other than judges who run for office. Much of the opinion is devoted to explaining how different judges are, even from other candidates, so that restrictions may be applied to them that would be inappropriate for others. The Court’s analysis of how judges are different rings true, but it provides powerful reasons for why they should not be candidates in the first place, and subject to political games.
The fact that most states elect at least some of their judges is not a problem the Court can – or should – try to change. But it could at least reject the fictitious justifications states use as fig leaves when they act to restrict candidates’ speech.
Robert Corn-Revere is a partner at Davis Wright Tremaine LLP, where he practices First Amendment law. He submitted an amicus brief in the case in support of the petitioner on behalf of the ACLU and the ACLU of Florida. The views in this article are solely those of the author.