A Dissenting Opinion on ‘Williams-Yulee’ Ruling

The counsel for the conservative Judicial Crisis Network, Jonathan Keim, writes in a Washington Times op-ed that the Supreme Court got it wrong when it upheld in April a Florida ban on judicial candidates directly soliciting campaign money.

After disagreeing with the high court’s interpretation of case law, Keim goes further to criticize limits on speech in judicial elections in general. “Restrictions on speech in judicial elections virtually guarantee that the government will use its power—power that ultimately comes from the people anyway—to insulate itself from accountability. And that is fundamentally undemocratic,” he writes.

Justice at Stake said the following when the court decided the case, Williams-Yulee v. The Florida Bar: “Bans on personal campaign solicitations by judges and judicial candidates are entirely reasonable provisions that work to preserve public trust in our courts. Today’s decision helps judges, by saving them from the compromising job of raising cash from people whose cases they will decide. It helps our court system, by shoring up its ability to be fair and impartial. And it helps the public, by reassuring them that they will not find themselves in court before a judge who has received a check directly from the opposing party in their case.” You can read other discussion of the ruling in earlier Gavel Grab posts.


‘Williams-Yulee’ is Analyzed by Law Dean Chemerinsky

The Supreme Court’s recent decision in Williams-Yulee v. The Florida Bar “leaves open the question of what else states may do in regulating speech in judicial election campaigns,” Erwin Chemerinsky, dean of the University of California/Irvine School of Law, writes at ABA Journal.

The 5-4 majority in Williams-Yulee  upheld a Florida ban on judicial candidates directly soliciting campaign money. The court’s “emphatic declaration that judges are not politicians” is in tension with a decision 13 years ago in Republican Party of Minnesota v. White, Chemerinsky contends, and leaves new questions for the high court to answer in the future. To learn more about Williams-Yulee, see Gavel Grab.

Why ‘Williams-Yulee’ Matters: It’s a ‘Question of Ethics’

It’s a “[q]uestion of ethics” that lies behind rules in a number of states that bar judicial candidates from directly soliciting donors for campaign money, attorney C. Simon Davidson writes in the “Beltway Insiders” column of Roll Call, a Washington-based publication.

Davidson relies heavily on the U.S. Supreme Court’s recent opinion in Williams-Yulee v. The Florida Bar, upholding such a ban in Florida, to explain the ethics concerns that form the basis for such rules. “Judges, charged with exercising strict neutrality and independence, cannot supplicate campaign donors without diminishing public confidence in judicial integrity,” Chief Justice John Roberts wrote for the 5-4 majority.

Meanwhile, the New York Times reported on a poll it conducted with CBS News, in an article that was headlined, “Poll Shows Americans Favor an Overhaul of Campaign Financing.” In the Christian Science Monitor, another article about the poll noted that two Yale Law School professors have cited the judicial candidate direct solicitation ban as the kind of reform that political leaders could embrace for elections to executive and legislative branch offices.

One Law Professor’s ‘Williams-Yulee’ Takeaways

Another analysis of Williams-Yulee v. The Florida Bar was published this week, this time in Verdict. Vikram David Amar explains his major takeaways from the case, and what they mean for the future of free speech cases in the Supreme Court.

First, Amar asserts that “the speech clause juggernaut may be losing steam,” because the majority upheld a restriction of political speech in favor of another interest: that of “preserving public confidence in the integrity of the judiciary.” The Court has recently ruled in favor of the First Amendment over “other values that traditionally have enjoyed high esteem,” and Yulee signifies what could potentially be a significant shift in the Court’s rulings.

According to Amar’s analysis, the case also diverted from court tradition in another significant way: strict scrutiny was applied more liberally than usual. Under strict scrutiny, the government is required to “prove that the law in question is narrowly tailored to serve a compelling interest.” Justice Antonin Scalia addressed why the law may not uphold the stated interest – public confidence in the judiciary – in his dissent: judicial candidates are still permitted to know who the donors are and have contact with them. Amar asserts that the majority rejected this argument, straying from the traditional understanding of what a “narrowly tailored” law is.

Amar also suggested that precedent may not be as important to the Court as is usually assumed, and that Chief Justice John Roberts can bring different logic to the table than his predecessor, Chief Justice William Rehnquist.

Public Confidence Behind SCOTUS Ruling in ‘Williams-Yulee’

In an article published this week, Facing South summarized the importance of the Supreme Court’s recent decision in Williams-Yulee v. The Florida Bar.

The ruling upheld a state’s right to impose limitations restricting a judicial candidate’s ability to personally solicit campaign contributions. Chief Justice John Roberts’ opinion stressed the importance of public confidence in the judiciary, which statistics show is waning. For instance, the article cites a Justice at Stake and Brennan Center for Justice poll that shows nearly 90 percent of voters “think fundraising and money in judicial elections are affecting judges’ decisions on the bench.”

The decision in Williams-Yulee protects all the states that place similar restrictions on judicial candidates. Moreover, the article emphasizes the ruling may encourage states that don’t have similar restrictions – nine of the 39 that elect at least some judges – to adopt the rule. The Brennan Center, a Justice at Stake partner organization, “plans to focus attention on these nine states in an effort to pass bans there.”

See Gavel Grab for more information.

Op-Ed: Williams-Yulee Does Not Signal Greater Change

Any optimism from campaign finance reformers in the aftermath of the Supreme Court decision in Williams-Yulee is misplaced, according to a recent op-ed in the Sacramento Bee. The case details were too specific and the decision too narrow, law school professor Jessica A. Levinson says.

“It is important to remember that plenty of unbecoming behavior is still allowed. Judicial candidates can still run ads asking for money. They can still know the identity of their campaign donors, and they can still personally thank those donors. The judicial candidates just cannot actually hold out their hands and accept the donations. They must deploy others to do that.”

Judicial elections have some serious problems, eroding public confidence in the judiciary, for instance, and Levinson says the ruling does nothing to fix any of them. “There is nothing in the opinion to indicate that the chief justice would uphold a restriction that could actually do what the majority purports to worry about – uphold the integrity of the judicial process.”

For more background on the Williams-Yulee decision, see Gavel Grab.

More Debate: ‘Williams-Yulee’ Alternately Applauded, Scorched

It might help to restore confidence in the Texas judiciary if judicial candidates were banned from directly soliciting campaign money, said an editorial in the (Bryan College Station) Eagle. It applauded a recent U.S. Supreme Court decision upholding such a ban in Florida.

The Editorial Board asks every judicial candidate about the influence of money and every one says he or she pays no attention to that when making rulings,” the editorial said. “We have no reason to doubt them, but the appearance of improper influence doesn’t pass the proverbial smell test. How can we Texans be assured that decisions are, indeed, impartial?”

A critical view of the Supreme Court’s decision in Williams-Yulee vs. The Florida Bar came in an Elko (Nevada) Daily Free Press column by Thomas Mitchell. He called it “another volley in the ongoing campaign to have judges appointed by elite committees of lawyers and judges and not voted into office by ignorant citizens who don’t know a judicial canon from a howitzer.”

Opinions in Favor of Appointing Judges Follow ‘Williams-Yulee’ Ruling

gavel_cash-300x202In the wake of a Supreme Court decision about fundraising in judicial elections, more analysts are suggesting the only way to eliminate outside influence is to do away with judicial elections entirely.

In Williams-Yulee vs. The Florida Bar, the high court upheld a Florida ban on judicial candidates directly soliciting campaign money. Kendra Fershee, a law professor at West Virginia University, told the West Virginia Record that the ruling “attempts to maintain a firewall between judges and donors, and attempts to maintain some level of ethical clarity.” She added, “But really, as long as we have judicial elections, this system is going to be very imperfect.”

The 5-4 decision, with the majority opinion written by Chief Justice John Roberts, has drawn widespread commentary.

The Philadelphia Daily News editorialized in favor of a switch to merit selection for judges. “Begging for, and receiving, money can compromise the neutrality and independence of judicial candidates – to say nothing of compromising justice itself,” it said. (more…)

Washington Post: Abolish Entire System for Electing Judges

washington-supreme-court-building-washington-d-c-dc169Editorializing favorably about the U.S. Supreme Court’s recent ruling in Williams-Yulee vs. The Florida Bar, the Washington Post said further action is needed to protect our courts from partisan and special-interest influence:

“Of course, as we have argued before, it would be even better to abolish the entire system of electing judges and appoint them instead, but that is not happening any time soon.

“Judges are supposed to be above the fray while politicians are in the middle of it. There’s good reason to treat them differently. Judges should not be grubbing for cash, while campaign donations and fundraising are deeply entrenched in American political culture.”


Chief Justice Roberts, in ‘Williams-Yulee,’ Weighing Legacy?

Chief Justice Roberts

Even the London-based Economist has something to say about the U.S. Supreme Court’s decision in Williams-Yulee vs. The Florida Bar, upholding a Florida ban on direct campaign cash solicitation by judicial candidates.

An Economist article summarizes Chief Justice John Roberts’s “rollicking” majority opinion, suggests that the practical implications of the ruling are “frankly modest” and delves into Justice Anthony Kennedy’s dissent. The piece concludes:

“Chief Justice Roberts is clearly considering the legacy of his court. The majority opinion in Williams-Yulee is, more than anything else, a sign of his fervent desire to cultivate the appearance of impartiality in America’s judiciary, including and especially its highest court.”