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Foreword: Are elected state judges now “above the political fray”?

The blog is delighted to host an online symposium on today’s decision in Williams-Yulee v. The Florida Bar.  Our first post is a foreword to the symposium by Ronald K.L. Collins, who organized the event.

Suppose a state’s view is [that] we want . . . our judiciary to be above the political fray so we have this kind of restriction on [judicial candidates soliciting campaign funds].

— Justice Ruth Bader Ginsburg

Oral arguments in Williams-Yulee v. The Florida Bar (2015)

The First Amendment battle continues: As evidenced by today’s fractured ruling in Williams-Yulee v. The Florida Bar, the Roberts Court remains badly divided on free speech questions when the flow of money into political campaigns is involved. What is new is how that division played out in this judicial elections/campaign finance case.   

Williams-Yulee is the thirty-eighth free expression opinion rendered by the Roberts Court, and the eighth case during the Chief Justice’s tenure involving elections and campaign funding. It was, however, only the second First Amendment case concerning judicial elections and campaign contributions, the last one being a five-to-four Rehnquist Court opinion, Republican Party of Minnesota v. White (2002). James Bopp, Jr., successfully argued the White case; he filed an amicus brief (one of seventeen such briefs) in support of the petitioner in today’s case.

Rare as it is, this time the First Amendment claim lost in a campaign fundraising context. Barry Richard served as counsel for the respondent Florida Bar, which prevailed.

The facts involved Lanell Williams-Yulee, a Tampa lawyer who ran for judicial office.  In the course of that campaign, she signed a fundraising letter in which she personally solicited campaign contributions.  At issue in the case was a rule of the Florida judicial code of conduct that prohibited her from personally asking would-be donors to contribute to her campaign. The wrinkle in the case was this: Although would-be judges were barred from contacting potential donors to solicit election funds, they could, nonetheless, send notes directly to donors to thank them for their contributions. Moreover, their campaign committees could seek campaign funds and communicate on their behalf.

The issue in the case was whether the Florida rule prohibiting candidates for judicial office from personally soliciting campaign funds violated the First and Fourteenth Amendments. By a five-to-four margin (with Justices Kennedy, Scalia, Thomas, and Alito dissenting), the Court sustained the Florida judicial conduct rule. It was the ninth five-four split in a Roberts Court free expression case and the sixth in a campaign-finance case.

The Roberts vote & why it is important

When it comes to First Amendment free expression cases, Chief Justice John Roberts is the one to watch. Not including the Williams-Yulee majority/plurality opinion by the Chief Justice, he has authored more majority opinions (twelve) in the free speech area than any other member of the Roberts Court. Justices Anthony Kennedy and Antonin Scalia are next in line with five each. When the Court is divided by a one-vote margin, Roberts seldom votes to deny a First Amendment claim (Garcetti v. Ceballos (2006) and Morse v. Frederick (2007) are the exceptions).

Notably, today Chief Justice Roberts voted with the Court’s liberal bloc to form a majority, which is rare. The only other time he did so was last Term in McCullen v. Coakley (2014), which although unanimous as to the judgment was five to four as to the rationale with the Court’s liberals siding with the Roberts opinion.

John Roberts was not on the Court when it sustained a First Amendment claim in Republican Party of Minnesota v. White. In her dissent in that case, Justice Ruth Bader Ginsburg declared: “I do not agree with this unilocular, ‘an election is an election,’ approach. Instead, I would differentiate elections for political offices, in which the First Amendment holds full sway, from elections designed to select those whose office it is to administer justice without respect to persons.” That judicial-elections-are-different argument did not convince a majority of the Rehnquist Court, but this time it did convince Chief Justice Roberts, which was all that was needed.

Reminiscent of Justice Ginsburg’s argument, the Chief Justice agreed that judicial elections are different: “Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor — and without having personally asked anyone for money.”

Supreme Court litigators take heed: The Chief Justice has never been on the losing side in a First Amendment free-expression case. That unbroken streak continues with today’s decision. Still, sometimes, as in United States v. Alvarez (2012), he finds himself on the plurality side of the First Amendment divide.

As to the question of applying strict or “exacting” scrutiny (a point for which Andrew Pincus argued in his merits brief), the Chief Justice could not get four other Justices to lend their name to that portion of his opinion. Justice Ginsburg (joined by Justice Breyer) backed away from that part (Part II) of the Chief Justice’s opinion.  Furthermore, in his own separate opinion, Justice Breyer stated: “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.” Still, because the four dissenters were all on board for a strict scrutiny standard of review (but applied in stricter ways), there were at least seven votes in support of that general proposition.

Some important take-away points from the majority opinion

  1. Satisfying a compelling state interest:

When it comes to denying a First Amendment expression claim owing to a finding of a compelling state interest, that, too, is quite rare — Holder v. Humanitarian Law Project (2010) being one such Roberts Court case. In this regard, it is especially noteworthy what the Chief wrote for a majority in distinguishing Williams-Yulee’s case from other campaign financing cases: “The parties devote considerable attention to our cases analyzing campaign finance restrictions in political elections. But 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.”

  1. Underinclusiveness need not be fatal

Returning again to the majority side of the Roberts opinion, he wrote something very important, particularly given the facts of this case and the inconsistency and underinclusiveness of the Florida law: “Although a law’s underinclusivity raises a red flag, the First Amendment imposes no freestanding ‘underinclusiveness limitation.’ . . . A State need not address all aspects of a problem in one fell swoop; policymakers may focus on their most pressing concerns.”  Here, too, such language could have a significant impact on future free speech cases.

  1. Narrowly tailored” does not mean perfectly tailored

Given the many loopholes in the Florida law, Williams-Yulee’s counsel and several amici argued that the law was not sufficiently tailored to satisfy First Amendment requirements.  Here is how Chief Justice Roberts replied to that argument: “We decline to wade into this swamp. The First Amendment requires that Canon 7C(1) be narrowly tailored, not that it be ‘perfectly tailored.’ The impossibility of perfect tailoring is especially apparent when the State’s compelling interest is as intangible as public confidence in the integrity of the judiciary.” Later, he added: “most problems arise in greater and lesser gradations, and the First Amendment does not confine a State to addressing evils in their most acute form.” Justice Alito was unconvinced; in his dissent he complained: Florida’s “rule is about as narrowly tailored as a burlap bag.”

In light of all of the above points and others, Justice Kennedy protested: “The . . . Court’s opinion contradicts settled First Amendment principles.”

Why not more votes for the Ginsburg opinion?  

Justice Ginsburg wrote a forceful separate opinion, one that was buttressed by social science evidence (seven such sources) and by several similar arguments laid out in the amicus brief prepared by Jessica Ring Amunson on behalf of a group of law, economics, and political science professors.  Against that backdrop, Justice Ginsburg emphasized: “Disproportionate spending to influence court judgments threatens both the appearance and actuality of judicial independence. Numerous studies report that the money pressure groups spend on judicial elections ‘can affect judicial decision-making across a broad range of cases.’”

Somewhat surprisingly, only Justice Breyer signed onto her opinion. Why not the Court’s other liberals, Justices Sotomayor and Kagan? Was it her objection to strict scrutiny, or her reliance on social science arguments, or was it instead something having to do with the Chief Justice’s influence? Or was it something else altogether?

Some important take-away points from the dissenting opinions

  1. Traditional exceptions to the First Amendment are not always needed

As evidenced by what it did in United States v. Stevens (2010) and in Brown v. Entertainment Merchants Association (2011), the Roberts Court has sometimes clung to the notion that speech is at least presumptively protected unless it falls into some category of historically unprotected expression.  On that very point, Justice Scalia’s dissent (joined by Justice Thomas) took issue with the majority opinion: “Our cases hold that speech enjoys the full protection of the First Amendment unless a widespread and longstanding tradition ratifies its regulation. (citation omitted). No such tradition looms here.”

  1. The importance of disclosure requirements

One ongoing question in the campaign-finance First Amendment arena is the extent to which the Roberts Court will uphold various disclosure requirements. On this important point, Justice Kennedy (writing for himself alone) noted: “Indeed, disclosure requirements offer a powerful, speech-enhancing method of deterring corruption – one that does not impose limits on how and when people can speak. He then added: “‘Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot.’ Based on disclosures the voters can decide, among other matters, whether the public is well served by an elected judiciary; how each candidate defines appropriate campaign conduct (which may speak volumes about his or her judicial demeanor); and what persons and groups support or oppose a particular candidate.”

  1. Relaxed strict scrutiny?

Strict scrutiny has long been understood as synonymous with the reality that it is a burden that can rarely, if ever, be overcome by the government. On that score, the Court’s constitutional handiwork today very much troubled Justice Kennedy: “The Court’s evisceration of that judicial standard now risks long-term harm to what was once the Court’s own preferred First Amendment test.”

Does today’s ruling portend a relaxed version of the strict scrutiny standard, or is simply the fact that judicial election cases are different?

* * * *

What does today’s decision portend? Will it be confined to judicial election cases? If so, what about other attempts by the states to regulate money (say by Super PACs) in such elections? Moreover, does the First Amendment give state judges free license to speak as they wish in elections without fear of state regulation?

To be sure, much more could and needs to be said about today’s holding and opinions. That said, we are fortunate to have a variety of additional commentaries by seasoned lawyers, renowned social scientists, and two former state supreme court justices.  The contributors to our online symposium are:

  1. Floyd Abrams (Partner, Cahill Gordon & Reindel)
  2. Jessica Ring Amunson (Partner, Jenner & Block, filed amicus brief supporting the Florida Bar)
  3. Lawrence Baum (Department of Political Science, Ohio State University)
  4. James Bopp, Jr. (Partner, the Bopp Law Firm, filed amicus brief supporting Williams-Yulee)
  5. Robert Corn-Revere (Partner, Davis Wright Tremaine, filed amicus brief supporting Williams-Yulee)
  6. Justice Robert Durham (Oregon Supreme Court, retired)
  7. Justice Joseph Grodin (California Supreme Court, retired)
  8. Ilya Shapiro (Senior Fellow, Cato Institute)
  9. Matthew J. Streb (Department of Political Science, Northern Illinois University), and
  10. Joshua Wheeler (Director, Thomas Jefferson Center for the Protection of Free Expression, filed amicus brief supporting Williams-Yulee)

Recommended Citation: Ron Collins, Foreword: Are elected state judges now “above the political fray”?, SCOTUSblog (Apr. 29, 2015, 7:46 PM),