Saturday, May 9, 2015
In Williams-Yulee v. The Florida Bar (.pdf), the Supreme Court rejected a First Amendment challenge to the Florida Canon of Ethics that bans judicial candidates from personally soliciting campaign contributions. And I realize this is an odd case to discuss on this blog – nothing about it explicitly engages business law issues – but bear with me as I get to the (perhaps, ahem, somewhat attenuated) business-related point.On several occasions, the Supreme Court has addressed the issue of campaign contributions in the context of judicial elections. The essential question has been whether judicial elections can be treated any differently from elections to other political offices. Are judges merely politicians in robes, in which case the same rules should apply, or are they something different, justifying a different set of rules?
This dispute, of course, is a very old one, and extends beyond the issue of campaign finance. Once upon a time, judges purported to “find” law via the application of neutral principles; on this view, judges did not make policy, but simply identified and interpreted preexisting legal rules. So crude a portrait of law has long since fallen out of favor, but the line between making law and applying it – and judges’ role in each – continues to vex.
In Republican Party of Minnesota v. White, 536 U.S. 765 (2002), Justice Scalia, writing for the Court, largely treated judges like any other political actor, explicitly recognizing that judges have the power to make law (and thus to make policy). And if they are selected or retained via an election, those policy choices have necessarily been placed before the populace for their assessment. As a result, the Court rejected special limitations on judicial-campaign-related speech; as Scalia put it, Minnesota, having chosen to “tap the energy and the legitimizing power of the democratic process” was now obligated to “accord the participants in that process the First Amendment rights that attach to their roles.” (quoting Renne v. Geary, 501 U.S. 312 (1991) (Marshall, J., dissenting)).
This is not to say that the Court failed to recognize any limits. Most notably, whatever their policy preferences, judges cannot favor particular litigants who appear before them in quid pro quo fashion, and regulations may be enacted to prevent this sort of bias (or its appearance). But beyond that limitation, so long as the judge would adopt the same rule for any litigant under the same set of facts, there is no impropriety. See Stephen J. Ware, Judicial Elections, Judicial Impartiality and Legitimate Judicial Lawmaking: Williams-Yulee v. The Florida Bar, 68 Vand. L. Rev. En Banc 59 (2015). Significantly, this principle hardly singles out judges; elected officials are always barred from gifting supporters with quid pro quo favors.
Williams-Yulee represents a retreat from White. In upholding the no-solicitation canon, Chief Justice Roberts (joined by Ginsburg, Breyer, Sotomayor, and Kagan) ostensibly adheres to the line drawn in White – i.e., regulation is appropriate when it is intended to avoid bias (or the appearance of bias) toward particular litigants who appear in the courtroom – but his reasoning is rooted in the peculiar character of judging. At two separate points in the opinion, he writes that “judges are not politicians.” The difference? Politicians “are expected to be appropriately responsive to the preferences of their supporters. Indeed, such responsiveness is key to the very concept of self-governance through elected officials.” Not so of judges: “a judge is not to follow the preferences of his supporters” but instead must be “perfectly and completely independent.”
Notably, these sentences facially straddle the line between expressing a concern about bias toward litigant supporters, and expressing a concern that judges may allow the general policy preferences of their supporters to sway their decisionmaking. And Roberts goes further: “A State may assure its people that judges will apply the law without fear or favor….” (emphasis added). This phrasing smacks of the old view of law – the Holmesian “brooding omnipresence in the sky.” Indeed, as Roberts famously said during his confirmation hearings, “it’s my job to call balls and strikes and not to pitch or bat.” (A point on which he was duly pressed.)
Justice Ginsburg, writing in concurrence and joined by Justice Breyer, was more explicit that judges should not allow the public to influence their decisionmaking generally. As she wrote, “Unlike politicians, judges are not expected to be responsive to the concerns of constituents. Instead, it is the business of judges to be indifferent to popularity.” Elected judges may make law, but apparently they must do so without regard for the electorate’s preferences.
The part that I find striking in all of this is that these views of the unique nature of judicial decisionmaking seem to be tethered to the federal concept of separation of powers. It has long been the subject of debate whether federal judges are authorized to create federal common law, rather than simply “interpret” statutes and texts produced by other branches, and precisely because they are appointed rather than elected, federal judges have developed a variety of doctrines designed to minimize their interference with the political branches. But states are not required to maintain the same kind of separation that exists at the federal level. As a result, state court judges are frequently more involved – and more explicitly involved – in traditionally “political” activities than the Williams-Yulee majority recognizes.
Most obviously, state courts have inherent power to create common law, and in so doing, they not only engage in explicit policymaking, but they often barely distinguish between interpretation of the state constitutional text, and the creation of new common law rules. State courts often have much broader notions of justiciability than do federal courts – they may issue advisory opinions to executive or legislative branch officials, decide hypothetical questions of law, and entertain broad taxpayer challenges to public actions. As a result, they may become an integral part of the legislative process, as legislators bring “friendly” challenges to new legislation in order to get a judicial stamp of approval before enforcement.
Judges in Tennessee appoint the state attorney general, and in other states, sheriffs are treated as part of the judicial branch. State courts may engage in extensive administrative tasks that are considered non-judicial in the Article III context. Chief Justice Roberts wrote in Williams-Yulee that “public confidence in the fairness and integrity” of judges is particularly important because the judiciary “has no influence over either the sword or the purse,” but query whether this is strictly true for states that have enacted “positive” rights (such as a right to education) in their constitutions, and have authorized courts to enforce those rights by ordering legislative expenditures. And critically, in many states, the entire justification for granting judges these powers is that judges are popularly elected, and thus express the will of the people. See generally Neal Devins, How State Supreme Courts Take Consequences Into Account: Toward a State-Centered Understanding of State Constitutionalism, 62 Stan. L. Rev. 1629 (2010); Jonathan Feldman, Separation of Powers and Judicial Review of Positive Rights Claims: The Role of State Courts in an Era of Positive Government, 24 Rutgers L.J. 1057 (1993); Helen Hershkoff, State Courts and the "Passive Virtues": Rethinking the Judicial Function, 114 Harv. L. Rev. 1833 (2001).
Which brings me to the business-related point: Delaware. (I’ve finally gotten here! I promised it was coming.). Delaware judges are not elected, of course, but the Chancery courts provide an excellent example of deviation from the federal model. As Marcel Kahan and Edward Rock put it, “The most noteworthy trait of Delaware’s corporate law is the extent to which important and controversial legal rules are promulgated by the judiciary, rather than enacted by the legislature.” Marcel Kahan & Edward Rock, Symbiotic Federalism and the Structure of Corporate Law, 58 Vand. L. Rev. 1573 (2005). Delaware courts operate more like legislatures than do other courts – Jill Fisch explains that Delaware courts are far less bound by precedent, and instead frequently change established doctrines to comport with public policy objectives. Delaware courts also control the issues on which they make law by issuing “dicta” meant to guide future decisionmaking, rather than passively wait for particular cases to be brought before them. See Jill E. Fisch, The Peculiar Role of Delaware Courts in the Competition For Corporate Charters, 68 U. Cin. L. Rev. 1061 (2000). And, as Haskell Murray has pointed out, Delaware judges frequently author law review articles and engage in other activities for the express purpose of, as then-Chief Justice Steele put it, “minimiz[ing] the systemic indeterminacy resulting from the resolution of economic disputes by a court of equity.” And the law that Delaware judges make is of national – even international – importance. If Delaware were to suddenly switch to an elected model of judicial selection, would it really be fair to say that their judges are so different from other state officials that we should allow more campaign-related speech-restrictions, i.e., fewer First Amendment protections?
The Williams-Yulee opinion elides all of this, and instead reduces all judges, across the nation, to a single role. What might the opinion have looked like, then, if Chief Justice Roberts had fully considered the different types of functions performed by state court judges? If we are to have different rules for “judges” versus “politicians,” shouldn’t there be a case by case analysis of the role of the judge within the particular state system?