In a disappointing opinion, the Supreme Court today upheld 5-4 the Florida Bar’s imposition of a speech restriction against a candidate for judicial election who dared to draft a letter asking for contributions to her efforts, post it on the Internet, and circulate it by mail to local voters. According to the Florida Supreme Court, the letter violated the state’s code of ethics for lawyers and judges.
Although the Court’s decision isn’t a total loss, Chief Justice Roberts’s majority opinion has plenty of problems, as the other justices pointed out. Here’s how Roberts concluded:
Judicial candidates have a First Amendment right to speak in support of their campaigns. States have a compelling interest in preserving public confidence in their judiciaries. When the State adopts a narrowly tailored restriction like the one at issue here, those principles do not conflict. A State’s decision to elect judges does not compel it to compromise public confidence in their integrity.
Justices Breyer, Sotomayor, and Kagan joined the Chief’s opinion in full. (Justice Breyer wrote a short concurrence arguing that strict scrutiny is a guideline, not an legal test, whatever that means.) Justice Ginsburg did not join Part II of the opinion because she thinks states have “substantial latitude” to enact campaign finance rules.
So what’s the proper test for speech by candidates for judicial office? Probably still strict scrutiny, as it turns out. Although Justice Ginsburg didn’t join Part II of Roberts’ opinion, the four justices of the plurality affirmed that strict scrutiny applies, along with dissenters Justices Scalia, Kennedy, Thomas, and Alito. Read that way, the opinion was actually 8-1 in favor of strict scrutiny (with Ginsburg the only dissenter). This is a clear rejection of the argument, advanced by several amici, that something less than strict scrutiny applies to infringements on the First Amendment in this area.
Justice Scalia’s dissent accurately perceives what lies behind the plurality’s maneuvering, joined by Justice Thomas:
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. . . . 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.
Justice Kennedy agrees with Justice Scalia in a separate dissent (citation omitted):
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.” 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.
And last but not least, Justice Alito takes careful aim at the Chief’s reasoning in yet another separate dissent:
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.