Eroding public faith

SCOTUS chief justice is worried about eroding public faith in judges

By Alison Frankel

U.S. Supreme Court Justice John Roberts joined with the court’s liberal quartet Wednesday in Williams-Yulee v. Florida Bar, a decision upholding disciplinary sanctions against a Florida state judicial candidate who included a request for campaign contributions in a letter introducing herself to Hillsborough County voters. The candidate, Lanell Yulee, lost the election and ended up facing state bar allegations that she had violated a prohibition against direct fundraising by people running for judge. Yulee appealed the sanction, citing her First Amendment rights.

Chief Justice Roberts wrote the majority’s heartfelt opinion, which emphasized the compelling public interest in preserving faith in the integrity of the judiciary. The Supreme Court, quite controversially, has refused to permit restrictions of the free speech rights of campaign contributors in its 2010 Citizens United v. Federal Election Commission and 2014 McCutcheon v. FEC decisions. But “judges are not politicians, even when they come to the bench by way of the ballot,” Roberts wrote. “And a state’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A state may assure its people that judges will apply the law without fear or favor – and without having personally asked anyone for money.”

The First Amendment right to free speech may be abridged only in exceptionally rare circumstances, the majority said. But even under the strict scrutiny standard, the court held, a restriction on fundraising by judicial candidates “advances the state’s compelling interest in preserving public confidence in the integrity of the judiciary, and it does so through means narrowly tailored to avoid unnecessarily abridging speech,” the opinion said. “Judges, charged with exercising strict neutrality and independence, cannot supplicate campaign donors without diminishing public confidence in judicial integrity. This principle dates back at least eight centuries to Magna Carta, which proclaimed, ‘To no one will we sell, to no one will we refuse or delay, right or justice.’”

Stirring, right? And obviously timely, given the increasingly enormous amounts of money pouring into judicial elections in the 39 states in which judges run for office. (Justice Ruth Bader Ginsburg‘s concurrence details some of the more egregious examples of what she called “disproportionate spending to influence court judgments.”) I actually agreed with some of the concerns raised in the dissent by Justice Antonin Scalia about the practical application of judicial fundraising restrictions – I’d rather see broader campaign finance reform in elections for judges, not just prohibitions on direct solicitations by judicial candidates – but it was refreshing to see this court recognize the taint that campaign contributions leave on elected judges.

It was especially interesting that the chief justice is worried about campaign spending undermining the public’s trust in the judiciary. Roberts was not on the court in 2002, the last time the justices considered the free speech rights of judicial candidates. (The court, in Republican Party of Minnesota v. White, struck down a Minnesota law restricting candidates for judgeships from announcing their views on disputed legal and political issues.) But in 2009, the chief justice was in the minority in Caperton v. Massey Coal, a case that presented the question of whether judges must step aside in litigation involving major campaign contributors.

The Caperton majority, as you may recall, held that due process required the recusal of a West Virginia state supreme court justice, Brent Benjamin, in Massey’s appeal of a $50 million jury verdict against the company. The judge’s campaign had received about $3 million in direct and indirect funding – two-thirds of the campaign’s entire war chest – from Don Blankenship, Massey’s chairman at the time. Judge Benjamin had denied a recusal motion, asserting that he was not predisposed in Massey’s favor. But the U.S. court held the “serious, objective risk of actual bias” was real enough in the extreme circumstances of the case to force the judge to step aside.

Roberts’ dissent in Caperton began with a nod at “the need to maintain a fair, independent, and impartial judiciary – and one that appears to be such.” He went on to say, however, that the majority had created an unworkable new recusal regimen that left no fewer than 40 questions – which Roberts enumerated – unanswered. “Today, the majority again departs from a clear, longstanding constitutional rule to accommodate an ‘extreme’ case involving ‘grossly disproportionate’ amounts of money,” Roberts wrote. But according to the chief justice, Blankenship’s independent expenditures weren’t really so disproportionate and may not have affected Benjamin’s election at all. “Justice Benjamin just might have won because the voters of West Virginia thought he would be a better judge than his opponent,” the Roberts dissent said. “Unlike the majority, I cannot say with any degree of certainty that Blankenship ‘chose the judge in his own cause.’ I would give the voters of West Virginia more credit than that.”

Obviously, the Williams-Yulee and Caperton decisions address different constitutional issues, free speech in the former and due process in the latter. At heart, though, both cases are about the appearance of judicial independence in the context of contributions to candidates running for judicial office. Sometime between 2009 and this Wednesday, Chief Justice Roberts seems to have changed his mind about the impact of judicial campaign donations on the public’s perception of the judiciary.

I think he’s absolutely right that expensive judicial campaigns lead to cynicism about the justice system. I’d love to see a state with elected judges use the Williams-Yulee dissent as an invitation, not a warning, to impose additional restrictions on fundraising and spending in judicial campaigns.

Would the chief justice back judicial campaign finance reform? That seems much more likely this week than it ever has before.