In a surprise victory for advocates of limits on money in politics, the Supreme Court ruled on Tuesday that states can indeed bar candidates for judicial office from personally asking for campaign donations.
That victory was delivered by Chief Justice John Roberts, who sided with the Court’s four most liberal Justices—Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan—in a rare departure from his usual practice of embracing First Amendment concerns over questions of electoral integrity.
“Judges are not politicians,” the Chief wrote in Williams-Yulee v. Florida Bar, “even when they come to the bench by way of the ballot.” (It’s an echo of Roberts’ opening statement during his Supreme Court nomination hearings, in which he said his job as a Justice is “to call balls and strikes” like a neutral umpire, and “not to pitch or bat.”)
Indeed, this turns out to be the key judgment on which the rest of the decision turns. After all, if one believes that judges are categorically distinct from other democratically elected officials, it’s easy to conclude, as Roberts does, that “a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office.” Therefore, states have greater leeway to regulate judicial elections than they do elections for congressional or gubernatorial seats.
At issue is Florida’s Judicial Code of Conduct, which, among other things, prohibits judicial candidates from personally asking for money. Enter Lanell Williams-Yulee, a former candidate for county clerk judge in Hillsborough County, who personally signed a mass-mail campaign fundraising letter in 2009. The state bar association found the letter to be a violation of Canon 7C(1) of the Judicial Code and filed a complaint with the Florida Supreme Court, which ruled against Yulee.
In affirming the Florida court, the majority acknowledged that the First Amendment’s prohibition of laws “abridging the freedom of speech” had to be overcome. As such, strict scrutiny would apply—that is, Florida had to demonstrate that its regulation was narrowly tailored to serve a compelling interest, or the rule would be struck down.
Roberts found that it did. “Canon 7C(1) advances the State’s compelling interest in preserving public confidence in the integrity of the judiciary,” he wrote, turning to the Magna Carta for a succinct and powerful articulation: “To no one will we sell, to no one will we refuse or delay, right or justice.” In other words, We the People need to know our judges will treat us fairly.
The Chief went on to swat away claims that the Florida rule somehow abridges both too much speech and too little speech. “The First Amendment requires that Canon 7C(1) be narrowly tailored, not that it be ‘perfectly tailored,’” he wrote, suggesting that the rule tries to maximize a judge’s First Amendment right to speak in support of her campaign.
Justice Ginsburg wrote a concurring opinion, joined in part by Justice Breyer, to stress her belief that states should have “substantial latitude” in regulating judicial campaigns, even wider than what Roberts would allow. “When the political campaign-finance apparatus is applied to judicial elections, the distinction of judges from politicians dims,” she wrote.
Justice Antonin Scalia wrote the leading dissent, scoffing that the majority “flattens one settled First Amendment principle after another.” Joined by Justice Clarence Thomas, Scalia rebutted Roberts’ argument at every turn, rejecting the assertion of a compelling interest and calling foul at the wide reach of Florida’s ban. “The First Amendment is not abridged for the benefit of the Brotherhood of the Robe,” he concluded. (Justices Anthony Kennedy and Samuel Alito filed their own dissents, largely echoing Scalia’s concerns.)
The Court’s ruling lets stand regulations in 30 states that limit the ability of judicial candidates to solicit money for their campaigns; 22 of those states are as strict as Florida. Indeed, there’s no sign that the tension will abate—$33 million were spent on judicial elections in 2014 alone.
Nicandro Iannacci is a web strategist at the National Constitution Center.
