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e majority it was sufficient that florida has targeted the conduct most likely to undermine public confidence and that personal solicitations are categorically different from solicitations by campaign committees the court did not go to great lengths to explain this categorical difference other than to say that while committee and personal solicitations may be similar in substance a state may conclude that they present markedly different appearances to the public importantly though the court did not cite to or seem to insist upon any proof by the state that these two types of solicitations were viewed differently by the public indeed when the court said that a state may conclude it was using language most often associated with deferential review where benefits of the doubt about the real world state of affairs are given to the government not the language of truly strict scrutiny in which the government must establish not just that its views are plausible but that its views are grounded in actual fact stare decisis is often not very powerful at the court the seemingly generous implementation of strict scrutiny brings up another important facet of williams yulee its tension with the most relevant supreme court case in the realm of judicial election regulation there is as one of the williams yulee opinions put it only one prior case concerning speech restrictions on a candidate for judicial office the 2002 case of republican party of minnesota v white and in that case the court in striking down minnesota s judicial election regulation applied a stricter version of strict scrutiny in white five justices used the first amendment to strike down a minnesota law that prohibited candidates for judicial office from speaking out on controversial issues of the day the law at issue prohibited a candidate for elected judicial office from announc ing his or her views on disputed legal or political issues the prohibition went beyond candidate promises and forbade for example a candidate from criticizing a past court decision and indicating a willingness to consider a different result in similar cases down the road minnesota argued that it needed to regulate candidate speech to ensure that the public believes that judges are sufficiently open minded about important matters that might come before them an interest very similar to florida s goal of preserving public confidence in judicial integrity but justice scalia s opinion for the majority in white rejected this justification for minnesota s law because the scheme was woefully underinclusive insofar as judicial candidates were not prohibited from voicing their views prior to the time they became declared candidates the court rejected the argument made by dissenting justices that statements made in an election campaign pose a special threat to open mindedness because the candidate when elected judge will have a particular reluctance to contradict them the court said that the idea that judges feel particularly constrained by statements they make qua candidates is not self evidently true and thus cannot carry the day given the burden on the government imposed by our strict scrutiny test to establish th e proposition that campaign statements are uniquely destructive of open mindedness or the appearance of open mindedness the tension between white and williams yulee is clear in the former the state lost because it did not prove that campaign statements were uniquely destructive of the appearance of open mindedness but in the latter the state prevailed because it was allowed to conclude without any proof that personal solicitations present markedly different appearances to the public as compared to committee solicitations why minnesota had to prove unique destruction of confidence whereas florida could simply reasonably surmise markedly different problems of public perception is left unexplained let me be clear here that i think the overall approach of williams yulee is largely correct and that the analysis of the white majority was largely misguided as i have written in law review articles and elsewhere while the first amendment protects one s right to speak about the bench there is no right to to sit on it and the tenth amendment gives states broad powers to regulate the process by which people become judges the key point is not merely that judges are not supposed to be politicians it is that throughout american history we have often selected judges but not legislators or chief executive officers without the use of contested elections and in these non election processes what would be judges have said and done is held against them by government decisionmakers just as the president and the senate certainly and permissibly may refuse to make someone a federal judge because of what that person has said even though such refusals are undeniably content based and indeed viewpoint based and thus might in other contexts run afoul of basic first amendment principles a state should be generally available to deny judicial office to candidates who speak in ways that contradict certain judicial decorum norms set by the state there is the separate question implicated in both white and williams yulee of whether the sanction for violating campaign rules can extend beyond mere disqualification for judicial office which is a topic i save for another day but my point here is not that williams yulee s result is wrong only that its application of strict scrutiny is not very authentic and that its leniency contradicts the approach in white chief justice roberts is no clone of chief justice rehnquist how do we explain the tension between white and williams yulee the answer seems to rest largely on changes to the court s personnel white was a 5 4 case with the majority consisting of chief justice rehnquist and justices o connor scalia kennedy and thomas the dissenters were justices stevens souter ginsburg and breyer in williams yulee the remaining white dissenters ginsburg and breyer are predictably in the majority and the remaining members of the white majority justices scalia kennedy and thomas are predictably in the dissent between white and williams yulee justice alito replaced justice o connor and voted the same way as we would have expected her to vote and justices kagan and sotomayor replaced justices stevens and souter and voted the same way as we would have expected them to vote so far so good an even swap but chief justice roberts who replaced chief justice rehnquist did not follow in the footsteps of his predecessor here so what was a 5 4 majority in favor of the first amendment claimant in white became in williams yulee a 5 4 majority in favor of the state chief justice roberts apparently has a different view of judicial elections and the extent to which first amendment protections for election related speech apply to them than his mentor and former boss whether there is a broader divergence between chief justice roberts and his predecessor in first amendment cases is a question that might be worthy of more attention now that the roberts court is finishing its first decade posted in abuse constitutional decision government issues law scotus tagged campaign candidates contribution solicitation leave a comment may 25 2015 by dmbuteau happy memorial day posted in warm wishes tagged holiday leave a comment may 17 2015 by dmbuteau americans prefer christians for their rulers bill federer remembers john jay s suggestion for citizen duty image http www wnd com files 2015 05 john jay 2 jpg john jay the first chief justice of the u s supreme court appointed by george washington was also president of the american bible society who was he john jay who died may 17 1829 john jay was one of the presidents of the continental congress in governments raised on the generous principles of equal liberty rulers of the state are the servants of the people and not the masters of those from whom they derive authority the ungrateful despotism and inordinate lust of domination which marked the unnatural designs of the british king and his venal parliament to enslave the people of america reduced you to the necessity of either asserting your rights by arms or ingloriously passing under the yoke as chief justice of the state of new york john jay charged the grand jury of ulster county sept 8 1777 the infatuated sovereign of britain forgetful that kings were the servants not the proprietors and ought to be the fathers not the incendiaries of their people what can appear more unworthy of credit than a prince should arise who by the influence of corruption alone to reduce three million of his most loyal and affectionate subjects to absolute slavery binding them in all cases whatever not even excepting cases of conscience and religion will it not appear extraordinary that thirteen colonies without funds without disciplined troops in the face of their enemies unanimously determine to be free and undaunted by the power of britain refer their cause to the justice of the almighty john jay signed the treaty of paris with franklin and adams which ended the revolutionary war the treaty began in the name of the most holy and undivided trinity john jay noted in 1777 this glorious revolution distinguished by so many marks of the divine favor and interposition and i may say miraculous that when future ages shall read its history they will be tempted to consider a great part of it as fabulous the many remarkable events by which our wants have been supplied and our enemies repelled are such strong and striking proofs of the interposition of heaven that our having been hitherto delivered from the threatened bondage of britain ought like the emancipation of the jews from egyptian servitude to be forever ascribed to its true cause and kindle in them a flame of gratitude and piety which may consume all remains of vice and irreligion blessed be god the time will now never arrive when the prince of a country in another quarter of the globe will command your obedience and hold you in vassalage nor will you in future be subject to the imperious sway of rulers instructed to sacrifice your happiness whenever it might be inconsistent with the ambitious views of their royal master jay together with madison and hamilton helped ratify the constitution by writing the federalist papers john jay wrote in 1777 the americans are the first people whom heaven has favored with an opportunity of choosing the forms of government under which they should live all other constitutions have derived their existence from violence or accidental circumstances your lives your liberties your property will be at the disposal only of your creator and yourselves you will know no power but such as you will create no authority unless derived from your grant no laws but such as acquire all their obligation from your consent security is also given to the rights of conscience and private judgment they are by nature subject to no control but that of the deity every man is permitted to consider to adore and to worship his creator in the manner most agreeable to his conscience john jay wrote in chisholm v georgia 1793 the people are the sovereign of this country with the support of george washington and alexander hamilton he negotiated the jay treaty which resulted in ten years of peaceful trade with britain while france was going through a bloody revolution when america s currency was losing value giving rise to the idiom not worth a continental john jay as president of the continental congress wrote sept 13 1779 depreciation of the currency has swelled the prices of every necessary article depreciation is to be removed only by lessening the quantity of money in circulation a distrust by the mass of the people in the ability of the united states to redeem their bills is the cause of it a bankrupt faithless republic would appear among reputable nations like a common prostitute among chaste and respectable matrons it has been already observed that in order to prevent the further natural depreciation of our bills we have resolved to stop the press discover more of bill federer s eye opening books and videos in the wnd superstore john jay stated in 1777 the constitution however has wisely declared that the liberty of conscience thereby granted shall not be so construed as to excuse acts of licentiousness the convention by whom that constitution was formed were of opinion that the gospel of christ like the ark of god would not fall though unsupported by the arm of flesh but let it be remembered that whatever marks of wisdom may be in your constitution yet like the forms of our first parents before their maker breathed into them the breath of life it is yet to be animated from the people it must receive its spirit vice ignorance and want of vigilance will be the only enemies able to destroy it every member of the state ought diligently to read and to study the constitution by knowing their rights they will sooner perceive when they are violated and be the better prepared to defend hence it becomes the common duty to unite in repressing the licentious and thereby diffusing the blessings of peace on april 15 1818 john jay wrote to his quaker friend john murry natural laws and morality are given by the sovereign of the universe to all mankind it is true that the law was given to moses not however in his individual or private capacity but as the agent or instrument and by the authority of the almighty the law demanded exact obedience and proclaimed cursed is every one that continueth not in all things which are written in the book of the law to do them the law by requiring perfect obedience under a penalty so inevitable and dreadful operated as a schoolmaster to bring us to christ for mercy legal punishments are adjusted and inflicted by the law and magistrate and not by unauthorized individuals these and all other positive laws or ordinances established by divine direction must of necessity be consistent with the moral law it certainly was not the design of the law to encourage a spirit of personal or private revenge on the contrary there are express injunctions in the law of moses which inculcate a very different spirit writing to john bristed april 23 1811 john jay recounted i was at a large party of which several spoke freely and contemptuously of religion an atheist very abruptly remarked that there was no god and he hoped the time would come when there would be no religion in the world i very concisely remarked that if there was no god there could be no moral obligations and i did not see how society could subsist without them john jay told the new york convention dec 23 1776 let a general reformation of manners take place united in preparing for a vigorous defense of your country when you have done all things then rely upon the good providence of almighty god for success in full confidence that without his blessings all our efforts will inevitably fail the holy gospels 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