Symposium: The judicial-elections exception to the First Amendment

By now anyone who would be reading this will know that last week the Supreme Court decided that the First Amendment’s speech protections are weaker in the context of judicial elections than in other kinds. In effect, the five-Justice majority found that a state’s interest in preserving public confidence in its judiciary extends beyond preventing the “appearance of corruption” that’s at play in the context of candidates for legislative or executive office. Accordingly, states – or, as in this case, state bar associations – can limit political speech that aims to raise money for judicial candidates.

I think the Court got it wrong: while I don’t like the idea of judicial elections – though they’re better than any alternative but the federal model – if you’re gonna have em, the Constitution doesn’t allow you to pick and choose between the salubrious and unseemly parts of democracy. But at this point I don’t have any novel analysis beyond the dissenting opinions and the coverage provided in this symposium.

Accordingly, rather than go over well-trodden ground, I’ll pick out an excerpt from each opinion that epitomizes the point being made and offer a brief comment.

1. Chief Justice John Roberts, for the majority (joined by Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor in full, and by Justice Ruth Bader Ginsburg except as to the part saying that strict scrutiny applies)

“The Florida Bar faces a demanding task in defending Canon 7C(1) against Yulee’s First Amendment challenge. We have emphasized that ‘it is the rare case’ in which a State demonstrates that a speech restriction is narrowly tailored to serve a compelling interest. Burson v. Freeman . . . (1992) (plurality opinion). But those cases do arise. See ibid.; Holder v. Humanitarian Law Project . . . (2010); McConnell . . . (opinion of KENNEDY, J.); cf. Adarand Constructors, Inc. v. Peña . . . (1995) (“we wish to dispel the notion that strict scrutiny is ‘strict in theory, but fatal in fact’”). Here, Canon 7C(1) advances the State’s compelling interest in preserving public confidence in the integrity of the judiciary, and it does so through means narrowly tailored to avoid unnecessarily abridging speech. This is therefore one of the rare cases in which a speech restriction withstands strict scrutiny.”

I think the Chief Justice goes on to make a hash of strict scrutiny, allowing a restriction that is “narrowly tailored” only if that phrase is synonymous with “could generally be said to advance a compelling interest even if there are better, more narrowly tailored ways.” For example, which better advances an interest in public confidence in judicial integrity: (1) disallowing a judge from signing a mass solicitation letter, or (2) allowing him or her to send thank-you to notes to people who actually donate? If you chose the first option, you may also think that mandates are synonymous with taxes and that United States v. Windsor has no relevance to the subsequent litigation over same-sex marriage.

2. Justice Breyer, concurring:

“As I have previously said, I view this Court’s doctrine referring to tiers of scrutiny as guidelines informing our approach to the case at hand, not tests to be mechanically applied. See, e.g., United States v. Alvarez . . . (2012) (BREYER, J., concurring in judgment) . . . ; Nixon v. Shrink Missouri Government PAC . . . (2000) (BREYER, J., concurring). On that understanding, I join the Court’s opinion.”

This was actually the entirety of this opinion. It’s not surprising, of course, that Breyer prefers mushy guidelines to actual tests, but it’s also refreshing to see a jurist recoil at the judicial artifice prevalent in scrutiny land.

3. Justice Ginsburg, concurring in part and in the judgment (joined by Justice Breyer only as to a short introductory section regarding how strict scrutiny doesn’t apply)

“For reasons spelled out in the dissenting opinions in Citizens United and McCutcheon, I would have upheld the legislation there at issue. But even if one agrees with those judgments, they are geared to elections for representative posts, and should have ‘little bearing’ on judicial elections. . . . ‘Favoritism,’ i.e., partiality, if inevitable in the political arena, is disqualifying in the judiciary’s domain. See Marshall v. Jerrico, Inc. . . . (1980) (‘The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases.’). Unlike politicians, judges are not ‘expected to be responsive to [the] concerns’ of constituents. McCutcheon . . . (plurality opinion) . . . . Instead, ‘it is the business of judges to be indifferent to popularity.’ Chisom v. Roemer, . . . (1991) (internal quotation marks omitted).”

To my mind, Ginsburg’s opinion lays out an excellent case for why we shouldn’t elect judges. But if a state goes with that populist innovation, it has necessarily decided that making judges more directly accountable to the people is worth the cost of making judges appear to be more accountable to some people than others. You simply can’t get away from that basic aspect of electoral democracy.

4. Justice Scalia, dissenting (joined by Justice Thomas)

“The Court tries to strike a pose of neutrality between appointment and election of judges, but no one should be deceived. A Court that sees impropriety in a candidate’s request for any contributions to his election campaign does not much like judicial selection by the people. One cannot have judicial elections without judicial campaigns, and judicial campaigns without funds for campaigning, and funds for campaigning without asking for them. When a society decides that its judges should be elected, it necessarily decides that selection by the people is more important than the oracular sanctity of judges, their immunity from the (shudder!) indignity of begging for funds, and their exemption from those shadows of impropriety that fall over the proletarian public officials who must run for office. A free society, accustomed to electing its rulers, does not much care whether the rulers operate through statute and executive order, or through judicial distortion of statute, executive order, and constitution. The prescription that judges be elected probably springs from the people’s realization that their judges can become their rulers—and (it must be said) from just a deep-down feeling that members of the Third Branch will profit from a hearty helping of humble pie, and from a severe reduction of their great remove from the (ugh!) People.”

This is exactly right – and perhaps is even better summarized by this sentence from the first page of Scalia’s opinion: “As a general rule, the state has no power to ban speech on the basis of its content.” And note, too, that Scalia recognizes that states may have different interests in regulating judicial elections than in regulating legislative or executive ones. That’s why, for example, there would be no problem with a rule saying that judges can’t solicit contributions from parties appearing before them (currently or with regularity). But the rule at issue here isn’t tailored that – or any other – way.

5. Justice Kennedy, dissenting

“It is not within our Nation’s First Amendment tradition to abridge speech simply because the government believes a question is too difficult or too profound for voters. If the State is concerned about unethical campaign practices, it need not revert to the assumption that voters themselves are insensitive to ethics. Judicial elections were created to enable citizens to decide for themselves which judges are best qualified and which are most likely to ‘stand by the constitution of the State against the encroachment of power.’ Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of New York 672 (1846). The Court should not now presume citizens are unequipped for that task when it comes to judging for themselves who should judge them. If there is concern about principled, decent, and thoughtful discourse in election campaigns, the First Amendment provides the answer. That answer is more speech.”

In effect, Kennedy doubled down on his own rationale in Citizens United. Bravo.

6. Justice Alito, dissenting

“Indeed, this rule is about as narrowly tailored as a burlap bag. It applies to all solicitations made in the name of a candidate for judicial office—including, as was the case here, a mass mailing. It even applies to an ad in a newspaper. It applies to requests for contributions in any amount, and it applies even if the person solicited is not a lawyer, has never had any interest at stake in any case in the court in question, and has no prospect of ever having any interest at stake in any litigation in that court. If this rule can be characterized as narrowly tailored, then narrow tailoring has no meaning, and strict scrutiny, which is essential to the protection of free speech, is seriously impaired.”

Alito expresses what was my gut instinct about the Florida judicial canon when I first heard about this case: however a state can regulate judicial elections, it can’t be so ham-handed.

* * * *

The result: we have an unsatisfying opinion that may do damage to both political speech and the application of the strict scrutiny test (whatever its merits). But one final thing before I sign off: Don’t be surprised that it was the Chief Justice who defected to the “liberal” side here rather than Kennedy, or take this case as a tea leaf regarding how Roberts might vote on Obamacare, gay marriage, or anything else. Kennedy has long been the First Amendment’s best friend on the Court and is never in play during campaign-finance cases. Roberts, meanwhile, strives to find the minimalist solution in such cases. Divining special constitutional rules for the “brotherhood of the robe” (as Scalia put it) was just his way of doing that here.

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.