April 29, 2015

"The Court’s twistifications have not come to an end; indeed, they are just beginning.... The First Amendment is not abridged for the benefit of the Brotherhood of the Robe."

Writes Justice Scalia, dissenting from the Supreme Courts decision today in Williams-Yulle v. The Florida Bar (PDF), which upheld the Florida Code of Judicial Conduct prohibition on the personal solicitation of campaign contributions by judicial candidates.

It's notable that the Court applies strict scrutiny. (The Florida Bar had argued that the Court should use a lower level of scrutiny that would only require the limit on speech to be “closely drawn” to match a “sufficiently important interest." That test, the Court said, applies to freedom of political association claims, not to free speech claims like the one presented here.)

But Justice Scalia (who was joined by Justice Thomas) objected to the way the Court applied strict scrutiny:

The first sign that mischief is afoot comes when the Court describes Florida’s compelling interest.... [T]he Court today relies on Florida’s invocation of an ill-defined interest in “public confidence in judicial integrity.”... As its opinion unfolds, however, today’s concept of judicial integrity turns out to be “a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.” 12 The Works of Thomas Jefferson 137 (P. Ford ed. 1905). When the Court explains how solicitation undermines confidence in judicial integrity, integrity starts to sound like saintliness. It involves independence from any “‘possible temptation’” that “‘might lead’” the judge, “even unknowingly,” to favor one party....

The Court’s twistifications have not come to an end; indeed, they are just beginning....

The prescription that judges be elected probably springs from the people’s realization that their judges can become their rulers — and (it must be said) from just a deep-down feeling that members of the Third Branch will profit from a hearty helping of humble pie, and from a severe reduction of their great remove from the (ugh!) People....

It is no great mystery what is going on here. The judges of this Court, like the judges of the Supreme Court of Florida who promulgated Canon 7C(1), evidently consider the preservation of public respect for the courts a policy objective of the highest order. So it is — but so too are preventing animal torture, protecting the innocence of children, and honoring valiant soldiers. The Court did not relax the Constitution’s guarantee of freedom of speech when legislatures pursued those goals; it should not relax the guarantee when the Supreme Court of Florida pursues this one. The First Amendment is not abridged for the benefit of the Brotherhood of the Robe.

9 comments:

robother said...

Twistifications of a Brotherhood of the Robe? No wonder the SCOTUS refuses to let proceedings be televised.
"What did you think of David Boies' oral argument Ruth?"
"I give it an 8; its got a good beat and I can twist to it."

Simon Kenton said...

It's just such a shame. It was right there, on the tip of his keyboard, and he could have done it, too, could have used "anfractuosities," and he twistified away from it. Damned shame, too. You don't get just all that many chances for "anfractuosities," it's like the chance to name your child Simon Kenton V, generations pass before the opportunity floats up to the shores of light, so here you can go months or even years without a chance to shoe-horn "anfractuosity" in, but no, right on the verge and he eeled out. He twistified again, like he did last summer, and the chance is lost.

David said...

He's correct. As usual.

rhhardin said...

Are judges allowed to burn flags or not? It's hard to follow.

Roger Sweeny said...

The First Amendment is not abridged for the benefit of the Brotherhood of the Robe.

If members of the Brotherhood get to decide, it sure as hell is.

Wilbur said...

“a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please"

Quite a prescient statement from Jefferson.

I'm reminded of the William Brennans of this world who believed they were doing right, yet lacked the wisdom to see that it's not the role of the judiciary to set or settle public policy.

Sebastian said...

They twist the wax, we get burned.

TCR James said...

That's actually a very revealing dissent.

Scalia has a vision of the apropriate role of government - particularly of the judiciary - as a somewhat humble servant. His textualism strips a lot of the mystery out of the law with its focus on plain language meaning and black letter text, and that temperament or attitude is reflected here too. I can easily imagine him saying words to the effect that, "the people's elected representatives made you an elected official, and now you're telling us that doing the things elected officials ordinarily do - campaigning for votes, soliciting campaign donations, speeches - are beneath you?

Scalia dislikes the notion of a judicial priesthood deciding all manner of tough questions (outside of the purely legal ones) and this just reflects his democratic impulse.

Not sure I'd have put in Twistifications there, however. No doubt, his pal Bryan Garner is chuckling about that one.

Simon said...

TCR James said...
"Not sure I'd have put in Twistifications there, however. No doubt, his pal Bryan Garner is chuckling about that one."

Perhaps he was gently reminding the chief of this.