Wednesday, January 21, 2015
The case of Williams-Yulee v. The Florida Bar, argued before the U.S. Supreme Court on Tuesday, January 20, sits at the convergence of two unique aspects of American jurisprudence – the First Amendment, and judicialelections. The case was brought by Lanell Williams-Yulee, a candidate in a Florida judicial election, who sent direct mail solicitation letters under her own signature to potential campaign contributors. Catching wind of this activity, the Florida Bar initiated a disciplinary hearing based on Florida Judicial Canon 7(C), which bars such direct solicitation by judges or judicial candidates (as opposed to indirect solicitation by a campaign committee). The Florida Bar ultimately fined Ms. Williams-Yulee to the tune of $1800. But the matter wasn’t yet over. Ms. Williams-Yulee sued the Florida Bar, charging that Canon 7(C) violated her constitutional first amendment rights.
Judicial elections are rare ducks around the world, viewed with curiosity at best and opprobrium at worst by our international peers who decry the overt politicization of the judiciary that comes with such elections. And the First Amendment, in its heightened protection of a wide range of speech, ranks second to none in the world. Indeed, the U.S. often feels it necessary to carve out special exceptions to international human rights norms in order to preserve domestic first amendment rights that go beyond speech protection elsewhere.
To some, then, the answer might be clear. States have opted for judicial elections, and with that comes a wide scope for speech in the context of a judicial election campaign, including the opportunity to make direct campaign solicitations. Indeed, Chief Justice Roberts articulated this perspective during the oral argument. Other Justices, however, were acutely aware of the ways in which such practices can undermine both the reality and appearance of judicial integrity. Justice Scalia seemed to pooh-pooh the notion of “judicial dignity” as a basis for upholding Florida’s judicial canon, but Justice Ginsburg observed that the American public wants judges who are above the political fray. Justices Sotomayor and Breyer noted from personal experience that it is virtually impossible for a judge to ask anything of a lawyer without an element of coercion – the lawyers always say “yes” to a judge! This inherent aspect of direct campaign solicitations in turn undermines the appearance of impartiality that states like Florida seek to preserve.
While judicial elections and the First Amendment are unique to the U.S., the concern for judicial integrity has been something that we share with many others in the world. The International Covenant on Civil and Political Rights, the American Convention on the Rights and Duties of Man, the widely-accepted Bangalore Principles, all emphasize the importance of the appearance of judicial impartiality, and the central relationship of judicial integrity to the rule of law. During the Williams-Yulee oral argument, Justice Breyer reached back to the Magna Carta to note the fundamental principle that “Justice shall not be sold, nor shall it be denied.” And the attorney representing the Florida Bar, Barry Richard, admonished the Court that public belief in judicial integrity is “essential to a stable democracy.” Though the justices did not specifically cite it during the oral argument, the amicus brief filed by the Carter Center -- known worldwide for its election monitoring and anti-corruption efforts -- bore witness to this central fact.
It is notoriously difficult to predict results based on oral argument, but observers in the Court yesterday concurred that it was not clear where five votes would come from to uphold the Judicial Canon – a provision which has analogues in most states. While the issues in the Williams-Yulee case are quintessentially domestic, the justices would do well to draw on the experiences of other nations that have universally concluded that maintaining the integrity of the judicial system justifies the imposition of special constraints on, and expectations of, judges.