Symposium: When strict scrutiny ceased to be strict

The result in the Williams-Yulee case was a difficult one to predict except that it was entirely predictable that the result would be by a deeply divided Court. It is no surprise that it was a five-to-four ruling, and no surprise at all that the jurists on both sides appear to have been irritated and frustrated by the views of those on the Court with whom they differed. The same had been true in Republican Party of Minnesota v. White (2002), the Supreme Court’s last trek into the muddy constitutional waters that required an assessment of First Amendment issues in the context of judicial elections. That case was not only decided by a five-to-four vote, but one of the five Justices — Justice Sandra Day O’Connor — repeatedly announced after her retirement that she regretted her vote.

The unavoidable problem in the case stems from the reality that if judges are to be elected, they must be allowed to campaign for election. Yet, what they say in their campaigns about what they will do as judges may lead people to doubt their open-mindedness as judges. And when they personally raise money, at least from lawyers and potential litigants before them, it may well lead to the perception of indebtedness on their part to their contributors.

The Florida Code of Judicial Conduct sought to strike a compromise, barring judicial candidates from personally soliciting campaign funds, while allowing their campaign committees to solicit funds for them and allowing the candidates to write thank-you notes to contributors. On its face, it was a perfectly reasonable, good faith effort to walk a difficult line. The First Amendment, however, is more demanding than that.

The problem with the ruling begins with an ostensible First Amendment victory. Seven of the nine members of the Court (all but Justices Ruth Bader Ginsburg and Stephen Breyer) concluded that strict scrutiny should apply, a usual predicate for striking one sort or another of government limitation on speech. But the scrutiny actually provided by the majority to the Florida Code provision was anything but strict. Justice Samuel Alito rightly concluded that the rule at issue was “about as narrowly tailored as a burlap bag.”

The actual solicitation that led to Williams-Yulee being sanctioned was a mass mailing, about as impersonal an approach as is imaginable. The Code applies, as well, to ads in newspapers, to requests for contributions, however small, and to solicitations to non-lawyers as well as to individuals who have never been in court or have reason ever to expect to be there. This is hardly the stuff of “narrow tailoring.” But in yesterday’s decision, it was. And it may be again, at least in the context of cases relating to limits on the speech of those who seek to serve as judges.

All of this is enough to make First Amendment aficionados wish that the Court had never decided that strict scrutiny applied at all.  As a result, the Court’s decision is not only a victory for those who view judicial elections as more than a bit different from other elections, but a potentially significant First Amendment setback in the application of strict scrutiny in the future. That may have troubling impact in other areas of law, with a single exception. Critics of Citizens United can take no solace from yesterday’s decision, since it is rooted in all respects in the difference between judicial elections and all others. If anything, the more the Court focuses on the special and distinct role of judges as opposed to other elected officials, the more firmly it reinforces its earlier ruling as to the latter .

In one sense, the decision recalls the divergent paths taken by the Supreme Court in its 1991 ruling in Rust v. Sullivan and then, ten years later, in Legal Services v. Velazquez. In the former, the Court upheld a ban on the use of federal funds to hospitals that counseled patients about abortions. In the latter, it struck down a limit on public funding to lawyers representing welfare clients, limits that prevented them from challenging the constitutionality of those rules.

More than one observer commented at that time that the Velazquez decision seemed to be influenced by the adverse reaction of the jurists to limiting a lawyer’s ability to make all arguments on behalf of a client. With that in play in the case, the general principle that the government retains vast, although not unlimited, decision-making authority over how to spend its money, seemed to fade a bit.

Similarly, in yesterday’s opinion, the Court dealt with a topic about which it had special knowledge and perhaps special feeling.  One need not adopt wholesale Justice Scalia’s final thrust at the majority in the case to admire its beauty: “The First Amendment is not abridged for the benefit of the Brotherhood of the Robe.”

Floyd Abrams is a partner in Cahill Gordon & Reindel and was counsel to Senator Mitch McConnell in Citizens United v. Federal Election Commission (2010). He is the author of Friend of the Court: On the Front Lines with the First Amendment (Yale University Press, 2013) and Speaking Freely: Trials of the First Amendment (Viking Press, 2005). Yale University Press will publish his next book, Why the First Amendment Matters, next year.