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operate as congress intended and may not operate at all roberts recalled scalia writing so it stands to reason that congress meant for those provisions to apply in every state as well posted in abuse constitutional decision education government issues law politics scotus tagged burwell case king obamacare leave a comment june 23 2015 by dmbuteau how to be a leader http actualized org articles how to be a leader posted in decision education freedoms goals liberty tagged beliefs courage leadership leave a comment may 31 2015 by dmbuteau williams yulee decision may 22 2015 the significance of the supreme court s williams yulee decision upholding florida s regulation of judicial elections by vikram david amar a few weeks ago the supreme court handed down an important yet under noticed case williams yulee v florida bar in which a 5 4 majority upheld a florida law that forbids candidates running in contested elections for judicial office from personally soliciting campaign contributions even though the state permits such candidates to raise money through surrogates campaign committees and also allows candidates to find out who contributed to their campaigns in the space below i identify four key takeaways from this sleeper ruling by the court a ruling that affords important insights about constitutional doctrine and also about the membership of the roberts court the speech clause juggernaut may be losing steam the unsuccessful challenge to the florida law was brought under the first amendment the defendant in williams yulee argued that florida s ban on personal solicitation was a regulation that singled out certain speech a personal request for money because of its content in violation of free speech principles the court acknowledged that the florida law was a content based regulation of political speech and as explained in more detail below thus purported to apply strict scrutiny to the matter but nonetheless upheld the law because of the important countervailing interest in preserving public confidence in the integrity of the judiciary in holding that public perceptions of integrity should carry the day the williams yulee ruling stands in contrast to the great majority of free speech cases decided by the court over the last generation since the early 1990s the overwhelming majority of plausible free speech claims and the defendant s claim in williams yulee was certainly plausible that have reached the court have prevailed and expressive autonomy has regularly trumped competing constitutional and societal values over the last quarter century the court has invoked the speech clause to invalidate federal state or local laws and regulations in well over fifty cases averaging close to three cases each year a substantial number given the court s small yearly docket of between seventy and eighty cases for most of that period but a quantitative inquiry tells only part of the story it is particularly noteworthy that first amendment claims grounded in expressive autonomy rights have not just been winning but have been winning against and requiring significant sacrifices of other values that traditionally have enjoyed high esteem in our legal social and constitutional traditions including the efficient functioning of labor unions the protection of military honor and military families antidiscrimination laws and norms election and campaign finance regulation intended to make elections more free and fair parental control over the upbringing of their children and consumer protections among others whether williams yulee represents simply one exception to this great tide of free speech victories or instead should be viewed as part of the beginning of a more balanced approach to free speech cases remains to be seen there are at least two and maybe more other interesting and difficult free speech decisions yet to be decided this term the first is a case that considers the extent to which the first amendment protects against prosecution individuals who utter words that cause objectively reasonable people to feel fear elonis v u s and the second is a case about how readily a state can discriminate among messages on personalized automobile license plates walker v texas division sons of confederate veterans it is possible that the free speech claimants in both of those cases who assert plausible if to my mind flawed free speech arguments will also lose if that happens commentators will begin to wonder whether the free speech juggernaut is indeed beginning to slow strict scrutiny is in the eye of the applier as i noted above the court in williams yulee applied strict scrutiny which requires the government to prove that the law in question is narrowly tailored to serve a compelling interest to the florida election regulation but as justice scalia remarked in dissent although the court purports to reach its destination by applying strict scrutiny it would be more accurate to say that it does so by applying the appearance of strict scrutiny in particular the court seemed quite tolerant of underinclusiveness in florida s scheme whereas significant underinclusiveness usually prevents a statutory scheme from being considered narrowly tailored in the way that strict scrutiny dictates for example the defendant pointed out that florida permits candidates to write personal thank you notes to donors guaranteeing that the candidates will know who the donors are and also allows campaign committees to act explicitly on behalf of candidates in directly soliciting donations if personal solicitations by candidates undermine public confidence in judicial integrity why do not these other practices create the same harm the court acknowledged that florida does allow activities that might create some suspicion over whether judges are beholden to or favor donors but concluded that narrowly tailored does not mean perfectly tailored and that the first amendment does not put a state to an all or nothing choice for the williams yulee 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 th...
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