Cross-posted on Law360
In October, I previewed Williams-Yulee v. Florida Bar, a First Amendment challenge to a provision of Florida’s Code of Judicial Conduct prohibiting candidates for judicial office from personally soliciting campaign contributions (rather that soliciting and accepting campaign contributions through a campaign committee). On April 29, the U.S. Supreme Court rejected the constitutional challenge, holding that the regulation was narrowly tailored to further the state’s compelling interest in judicial integrity.
In its decision, the court recognized that the role of the judiciary is fundamentally different than that of the other branches of government. Chief Justice John Roberts wrote that “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.” The opinion offered insight into the question left open after the court ruled in Republican Party of Minnesota v. White — to what extent states can regulate judicial elections differently than elections for representative offices.
In some respects, this 5–4 decision was remarkable. Chief Justice Roberts joined the court’s more liberal justices against the conservative wing for only the second time (the other being the decision upholding the constitutionality of Obamacare). Most of the justices agreed that strict scrutiny applied, and the majority found that the regulation is “one of the rare cases in which a speech restriction withstands strict scrutiny.” The court’s conservatives took umbrage with the opinion, arguing that while the judicial role indeed differs from other political offices, Florida’s rule could not survive strict scrutiny (often described as “strict in theory, but fatal in fact”). Because the prohibition still allows judicial candidates to learn the identity of their contributors and write them thank-you letters, Justice Samuel Alito described the regulation as “about as narrowly tailored as a burlap bag.” And Justice Anthony Kennedy’s dissent doubled down on the court’s campaign finance jurisprudence as articulated in Citizens United and McCutcheon, characterizing the minor infringement on communication as “state censorship.” But as the majority noted, the only infringement on judicial candidates is the ability to say “please give me money,” a message that can nonetheless be conveyed by the candidate’s campaign committee. Justices Ruth Bader Ginsburg and Stephen Breyer also wrote separately to express their frustration with the court’s mechanistic application of First Amendment doctrine to judicial elections.
The Immediate Impact
Thirty-nine states use some sort of election to select at least some of their judges. The most immediate impact of Williams-Yulee is that the 30 states that prohibit at least some sort of personal solicitation by judicial candidates will retain that measure. And by recognizing the vital state interest in judicial integrity, and that “precedents applying the First Amendment to political elections have little bearing” on judicial elections, the court may be signaling that states may take additional steps to regulate judicial elections differently. This is a categorically different approach than that displayed by the court’s majority in other campaign finance situations.
What the Decision Did Not Address
The decision in Williams-Yulee did not resolve all issues presented by state regulation of judicial elections. Other judge-specific rules have been challenged in court and it remains to be seen how much guidance Williams-Yulee provides. One case in particular to watch is Wolfson v. Concannon which will be taken up by the Ninth Circuit en banc in June. Before the Supreme Court granted certiorari in Williams-Yulee, a divided three-judge panel had struck down judicial election regulations, including not only the prohibition of personal solicitation, but other canons of judicial conduct that restrict the partisan activities of judicial candidates. While those regulations undoubtedly impose a First Amendment burden, states certainly have an interest in the public’s confidence that judges are not merely partisan political actors. It remains to be seen how expansively courts will read Williams-Yulee.
Victory for Fair Courts
Ultimately, Chief Justice Roberts’ opinion recognized the ways in which electing judges threatens the integrity of the judiciary, and acknowledged the need to protect the reality and appearance of judges’ impartiality. The decision is a major victory for judicial integrity. Now we must wait and see how much latitude states are given to take other measures to ensure that electing judges does not compromise fairness and impartiality in our courts.