Symposium: The distinctive character of judging

From the earliest days of the Republic, Americans have displayed an ambivalent attitude toward judges. On one hand, we regard the judicial branch as performing a function distinct from the political branches, calling for the exercise of judgment removed both from popular opinion and from the political-moral views of the individual judge. This view of what we expect from judges is reflected in the lifetime tenure granted to federal judges by the national Constitution, and in the way we sometimes talk about wanting judges who “apply” rather than “make” the law. Chief Justice John Roberts’s insistence at his confirmation hearing that the role of a Supreme Court Justice is similar to that of a referee calling “balls” and “strikes” is an extreme example of that rhetoric.

On the other hand, we realize that what we call “law” is often ambiguous and malleable, calling for the exercise of judgment that is likely, and to some extent unavoidably, influenced by the judge’s personal history and values, and to that extent arguably amenable to public oversight through the ballot. This view, emphasizing the similarity between the judicial and legislative functions, is reflected in the choice of most states to submit would-be judges and incumbent judges to some form of judicial election. It is reflected also in the attacks frequently made against judges for being overly activist, and for not appropriately recognizing the will of the people. If the judge-as-referee metaphor marks one polar view of how we view judges, the judge as super-legislator marks the other.

Most judges and lawyers — and in their more reflective moments I suspect most citizens — recognize that neither the referee nor the super-legislator metaphor accurately conveys the complexity of the judging process. We recognize that while there is often room for considerable discretion in decision making, depending upon the level of the judicial process at which the decision is made. The exercise of that discretion is likely to be affected, sometimes not consciously, by factors that might be called subjective. There exists also a background of constraints, in the form of text, history, precedents, and concern for the institutional role of the courts, which we expect judges to take into account and which judges, at least in their view, typically do. Consequently, most judging takes place along a continuum between the poles of judge-as-referee and judge-as-legislator, a middle ground of tension that tends to resist simplistic metaphors, and for that matter easy understanding.

Thirteen years ago this tension came before the Court in Republican Party of Minnesota v. White, involving a rule of the Minnesota Supreme Court prohibiting candidates for judicial election from announcing their views on disputed legal and political issues. In a five-to-four decision, the Court held the rule invalid. Justice Antonin Scalia’s opinion, applying strict scrutiny, reasoned that the rule, directed toward the expression of views, could not be justified on the basis of preserving judicial “impartiality” in the narrow sense of avoiding bias toward particular litigants, nor could it be justified on the basis of preserving “impartiality” in the broader senses of avoiding preconceptions or preserving the appearance of “open-mindedness,” since preconceptions are inevitable and statements in an election campaign are such an infinitesimal portion of public commitments to legal positions that the justification is implausible. Justice Sandra Day O’Connor concurred. Nonetheless, she had reservations about the wisdom of judicial elections: “[I]f the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges”.

Now, in Williams-Yulee, the tension over the role of judges comes before the Court a second time, this in the form of Florida’s Code of Judicial Conduct restricting the personal solicitation of campaign funds by judicial candidates. Evaluated on the basis of strict scrutiny standards the Court has developed in the arena of campaign financing generally, the restriction would likely fail. As Justice Scalia argued in his dissent, even accepting a compelling interest in assuring both the presence and appearance of judicial impartiality, the restriction draws lines which are vulnerable to substantial arguments of both underbreadth (for example by prohibiting personal solicitation of funds while allowing solicitation by a campaign committee, and by allowing the candidate to send thank you notes to donors) and overbreadth (for example by prohibiting solicitation from persons, such as relatives, not likely to appear in the candidate’s court). And, he insisted, less restrictive limitations (such as requiring recusal) were available. Four Justices (Scalia, Thomas, Kennedy, and Alito) would have held Florida’s rule invalid on First Amendment grounds.

It was Chief Justice Roberts who saved the day for Florida’s rule, in a five-to-four opinion founded on the distinctive character of judging. “Judges are not politicians,” he wrote. And, with an apparent rejection of Justice O’Connor’s argument in White, he wrote: “[A] State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office.” And a “State’s interest in preserving public confidence in the integrity of its judiciary,” he added, “extends beyond its interest in preventing the appearance of corruption in legislative and executive elections.” This is so because politicians “are expected to be appropriately responsive to the preferences of their supporters,” while in “deciding cases a judge is not to follow the preference of his supporters, or provide any special consideration to his campaign donors.” While accepting the strict scrutiny standard, the Chief Justice’s opinion dismisses the dissenters’ underbreadth/overbreadth arguments largely by deferring to the state’s judgment as to where the lines should be drawn — a deference seldom displayed elsewhere in First Amendment jurisprudence.

Justice Scalia’s dissent accuses the majority of applying only “the appearance of strict scrutiny,” and as strict scrutiny has been applied in some other First Amendment contexts, including campaign financing, there is merit in his critique. Of the four Justices who agreed with Chief Justice Roberts that the Florida rule should be upheld, one (Justice Ginsburg) declined to accept the propriety of the strict scrutiny standard, and another (Justice Breyer), while agreeing to that standard, concurred separately to emphasize his view that the Court’s doctrine referring to tiers of scrutiny should be regarded as “guidelines informing our approach to the case at hand, not tests to be mechanically applied.”

In the end, what is significant about yesterday’s decision is not the doctrine. Nor, even, is it the outcome in terms of the particular rule under consideration. It may be, as Justice Scalia suggests, that the distinctions that Florida drew will have little impact on the public’s perception of judicial integrity. What is significant is the tone of the opinion, its whole-hearted acceptance of the distinctive nature of the judicial function, its recognition of “judicial integrity,” however ill defined, as an appropriate justification for regulation of judicial elections. Also significant are the questions the ruling will inevitably raise concerning the continued authority of White.

While the majority opinion does little to reconcile our ongoing ambivalence over the judicial role, it nonetheless should provide a prod to more meaningful public reflection and debate.

Joseph Grodin is a Distinguished Emeritus Professor at University of California, Hastings College of the Law. He served as Associate Justice of the California Supreme Court from 1982 to 1987, when he was removed, along with Chief Justice Rose Bird and Associate Justice Cruz Reynoso, after a retention election campaign that targeted the court’s decisions in death penalty cases.