On April 29, the U.S. Supreme Court announced its opinion in Williams-Yulee v. The Florida Bar, a case arising out of Florida decided by a five-to-four vote involving the confidence of the American public in the country’s judicial system. In the words of the great legal jurist Yogi Berra, “it’s like déjà vu all over again.”
But whereas Bush v. Gore (2000) had an immediate nationwide impact, the likely short-term impact of Williams-Yulee will be negligible. After all, the later decision affirmed not only Florida’s prohibition of direct solicitation of campaign funds by judicial candidates, but also essentially gave constitutional approval to similar prohibitions in thirty other states. Thus, for the immediate future, the way in which judges are selected in this country will remain business as usual.
Predicting the long-term impact of Williams-Yulee is, of course, far more difficult. On one hand, the decision only involves the speech rights of a very small segment of the American public in a very limited context. Yet the analysis employed by the majority (and plurality) raises more questions than it answers and has the potential to severely restrict not only the speech rights of judges in contexts other than the solicitation of campaign funds, but also the First Amendment rights of all Americans.
The majority opinion by Chief Justice John Roberts rests on one simple conclusion: judicial campaign speech is different than campaign speech for other types of public office. “[A] State’s interest in preserving public confidence in the integrity of its judiciary extends beyond its interest in preventing the appearance of corruption in legislative and executive elections.” As a result, “States may regulate judicial elections differently than they regulate political elections, because the role of judges differs from the role of politicians.”
Although the Chief Justice’s analysis answers the question of whether the First Amendment permits restricting solicitation of funds by judicial candidates, Justice Antonin Scalia notes in dissent that a number of “real-world questions” remain unanswered.
Does the First Amendment permit restricting a candidate’s appearing at an event where somebody else asks for campaign funds on his behalf? Does it permit prohibiting the candidate’s family from making personal solicitations? Does it allow prohibiting the candidate from participating in the creation of a Web site that solicit funds, even if the candidate’s name does not appear next to the request?
These and other questions posed by Justice Scalia appear to be derivatives of a single, larger question: if the prohibition on campaign solicitation by judicial candidates is constitutionally permissible, then why wouldn’t restrictions on these other forms of solicitation be similarly permitted?
Also worth considering is why the analysis employed by the majority would not allow restrictions on judicial speech in contexts other than running for office. More and more, judges are making public speeches, writing books, and participating in programs beyond the courtroom. The Supreme Court has recognized that judges, like other officials, play important roles in our society, which “makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance.” Yet whether it is because of the identity of the sponsoring organization, the compensation that the judge receives for his participation, a perceived conflict of interest, or some other reason, there are always those whose confidence in the integrity of the judiciary will be diminished by judicial participation in activities outside the courtroom. Under the Court’s analysis, wouldn’t these concerns justify a prohibition of such “extracurricular” activities?
Whether or not last week’s decision will result in greater restrictions on judicial speech remains to be seen and probably will concern few outside the legal profession or academia. Of much wider concern should be the potential of the decision to support speech restrictions on the public at large. The seed of that concern can be found in one sentence of the plurality opinion: “This is therefore one of the rare cases in which a speech restriction withstands strict scrutiny.” Once described as “strict in theory, fatal in fact,” strict scrutiny provided certainty to one aspect of the law. When a court announced it was going to apply strict scrutiny review, one need not read the opinion any further to know that the government action at issue was held to be unconstitutional. This is the second opinion authored by Chief Justice Roberts in which strict scrutiny did not toll the death knell for the government action under review. It is safe to assume there will be others.
More concerning than the loss of strict scrutiny certainty, however, is that it occurred in this particular case. As Justice Scalia notes in his dissent, strict scrutiny places on the State the “difficult burden of demonstrating that the speech restriction substantially advances the claimed objective. The State bears the risk of uncertainty, so ambiguous proof will not suffice.” And yet in this case, the proof offered by the State is largely speculative. Chief Justice Roberts writes that it is “intuitive” that the solicitation ban advances public confidence in the judiciary. Later in the opinion, the Chief Justice writes 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.”
Similarly, in his dissent Justice Anthony Kennedy wrote that “[t]he law comes nowhere close to being narrowly tailored. And by saying that it survives that vital First Amendment requirement, the Court now writes what is literally a casebook guide to eviscerating strict scrutiny any time the Court encounters speech it dislikes.”
The Justices do agree that preserving the public’s confidence in the integrity of the judiciary is a compelling interest. But this conclusion assumes that such confidence currently exists despite a number of metrics that suggest otherwise. For example, on the same day the Supreme Court announced its decision last week, Alex Dobuzinskis, writing for the Reuters News Agency, reported:
In a survey of Americans ages 18 to 29, Harvard’s Institute of Politics asked if they were confident the U.S. judicial system could “fairly judge people without bias for race and ethnicity. Forty-nine percent of respondents said they had not much or no confidence, the researchers said. Among African-Americans, 66 percent said they had not much or no confidence in the system’s fairness, while 53 percent of Hispanics expressed similar misgivings, the study found.
In Bush v. Gore even members of the Supreme Court raised serious questions about the degree of confidence Americans actually have in their judges and Justices. In a dissenting opinion joined by Justices Stephen Breyer and Ruth Bader Ginsburg, Justice John Paul Stevens wrote:
What must underlie petitioners’ entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.
In 2012 Justice Scalia counseled those Americans still upset with Bush v. Gore to “[g]et over it.” The mere fact that twelve years after the decision Justice Scalia felt the need to offer such an admonishment is fairly strong evidence that many Americans have yet to recover the confidence they had in the American judicial system prior to 2000. As such, it might be more accurate if the compelling interest discussed in this case was stated as “restoring” or “establishing” confidence in the American judiciary rather than preserving it.
Josh Wheeler is the Director of the Thomas Jefferson Center for the Protection of Free Expression located in Charlottesville, Virginia. He also serves as an adjunct faculty member at the University of Virginia School of Law, where he co-directs a First Amendment Practice Clinic. Wheeler received a Bachelor’s degree from the University of North Carolina at Chapel Hill, a Master’s degree from Hollins College (now University), and a law degree from the University of Virginia School of Law. He is a member of the California, D.C., and Virginia state bars. He filed an amicus brief in the case on behalf of the Jefferson Center in support of the petitioner.