The substance of Justice Ginsburg’s concurring opinion today in Williams-Yulee v. Florida Bar is as bad as her botching of the idiom. In support of her complaint that “millions of dollars” have been spent “opposing the reelection of judges whose decisions do not tow [sic] a party line or are alleged to be out of step with public opinion,” she writes:
Following the Iowa Supreme Court’s 2009 invalidation of the State’s same-sex marriage ban, for example, national organizations poured money into a successful campaign to remove three justices from that Court. Attack advertisements funded by issue or politically driven organizations portrayed the justices as political actors; they lambasted the Iowa Supreme Court for “usurp[ing] the will of voters.” [Citations omitted.]
In other words, Ginsburg wrongly conflates criticizing justices for being “political actors” and for “usurping the will of voters” with complaining that they’re not “toeing a party line” or are “out of step with public opinion.” (As the New York Times article on the Iowa election acknowledges, the campaign against the Iowa justices presented “concerns about judicial overreaching” and “grumbling about ‘robed masters.’”)
Thus, Ginsburg would seem to think that the state interest in “the appearance and actuality of judicial independence” ought to protect judges facing retention elections from vigorous criticism for allegedly abusing their judicial office. But as Justice Scalia puts it in his dissent, the “First Amendment is not abridged for the benefit of the Brotherhood of the Robe.” (Or the Sisterhood, either.)
(I hope to find time soon to write about the Chief Justice’s (mostly) majority opinion and Justice Scalia’s vigorous dissent.)