Free Speech For People Is Expanding The Constitutional Conversation With Justice Scalia on Williams-Yulee

Free Speech For People’s Legal Advocacy Program aims to “expand the constitutional conversation” about money in politics. Based on yesterday’s Supreme Court argument in a case involving judges soliciting campaign contributions, it appears that we’ve expanded that conversation in an unlikely direction: Justice Scalia.

Some background: 30 of the 39 states that elect their judges have an ethics rule that prohibits judges (or aspiring judges) from soliciting contributions. That doesn’t mean their campaigns can’t raise money—it just means that someone else (a volunteer, friend, or campaign employee) has to make the “ask.”

Yesterday, the Supreme Court heard oral arguments in Williams-Yulee v. The Florida Bar, which challenges this “anti-solicitation” rule as violating freedom of speech under the First Amendment. Free Speech For People, along with Board member and retired Montana Supreme Court Justice the Honorable James Nelson, filed an amicus brief in support of Florida’s rule. So did many of our allies. But our argument was a little different from theirs.

And it seems to have caught the attention of Justice Scalia.

Most of the briefs supporting Florida’s rule focused on impartiality: judges might be biased in favor of contributors. Some mentioned coercion: when a judge asks a lawyer who’s frequently in her court to pay up, she doesn’t realistically have a choice. We agree with those points. But our brief advanced an entirely different argument.

We argued that the state has an interest in preserving the dignity of the judiciary. Our legal system depends on respect for judges and courts. Most states prohibit judges from doing things that might “demean the judicial office.” And states insist that judicial election campaigns must “maintain the dignity appropriate to judicial office.” So states could determine that it’s undignified for sitting or aspiring judges to personally solicit donations, and that the spectacle of them doing so could lead to a loss of respect for the judiciary. The anti-solicitation rule lets judicial candidates raise campaign funds through their campaign committees, without soiling the dignity of judicial office.

It’s a novel argument that nobody else made, and the plaintiff’s lawyers felt they had to respond to it in their reply brief.

And more importantly, Justice Scalia seems to have taken notice.

Justice Scalia asked the plaintiff’s lawyer to identify all the possible justifications for the anti-solicitation rule. The lawyer mentioned three. But Justice Scalia interjected that he’d forgotten one:

JUSTICE SCALIA:  What about the interest in judicial dignity?

MR. PINCUS:  Well, that ­—

JUSTICE SCALIA:  I mean, there’s stuff we don’t let judges do that we let other people do.  Such as, it’s at least a tradition—I’m not sure whether it’s in any ethical rules, but let’s assume it was in ethical rules —that judges do not respond in op ed pieces to criticisms of their decisions.  All right. John Marshall did that but he did it anonymously.

 (Laughter.)

JUSTICE SCALIA:  Let’s assume that that rule is written into judicial ethics.
Would that stand?

In other words, Justice Scalia seems to appreciate that there’s a principle of preserving judicial dignity that lies behind many rules of judicial ethics. The lawyer hemmed and hawed a bit, acknowledging that interest, but trying to say it didn’t apply here. But Scalia wouldn’t let him off so easily:

 JUSTICE SCALIA:  No, no, but answer my question.  Would that be okay?

MR. PINCUS:  Would it be okay to —­

JUSTICE SCALIA:  An interest in judicial dignity.  There are certain things that are infra dignitatem, as we say.

Justice Scalia suggested that Florida’s rule “has more to do with judicial dignity than ­­ than the corruption stuff we’ve been talking about.” He compared a judge soliciting contributions to a “mendicant” who was “holding [his] hat out asking people for money.” And Justice Scalia wasn’t the only one who took an interest in judicial dignity—Justices Ginsburg and Sotomayor mentioned it too, though just briefly.

What does this mean?

Justice Scalia’s questions about dignity can be interpreted in many ways, and Supreme Court Justices often ask questions to explore arguments that they’ll later reject. And the lawyer for the Florida Bar said that he wasn’t relying on preservation of judicial dignity as an argument. So maybe Justice Scalia won’t rule that preserving the dignity of the judicial branch is a good reason to prevent judges from going around hat in hand after all.

But one thing is sure: as page after page of the Supreme Court transcript shows, Free Speech For People has definitely expanded the conversation.

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