Thursday, April 30, 2015

Did Chief Justice Roberts go a bit too far in explaining why judges are different from all other elected officials?


Chief "Smirkin' John": Too clever for his own good?

by Ken

As Daily Kos's Adam B writes in a fine post on yesterday's Supreme Court ruling that Florida can indeed bar judicial candidates from personally soliciting campaign funds, the ruling "stunned many Court observers -- certainly including me."

Even in retrospect, it looks to have been a ho-hum Roberts Court split, with the Five Loonies on one side and the Four Moderates on the other, and how dare a state try to limit anyone in pursuit of campaign cash? I say "even in retrospect," because eight of the nine justices lined up in their expected places. It's just that there was one deviant, and he caught everyone by surprise. Yes, none other than Chief Justice "Smirkin' John" Roberts himself ditched the Loonies bloc and joined the Court moderate nerds the other way.

Now I'm not going to suggest cause and effect, but merely point out that this maneuver had the side effect of putting the chief in the position of assigning himself the role of opinion-writer, and the result may not be exactly what one of the Court's nerd kids might have written. For starters, it meant that the decision could be couched in terms of how judicial elections are different from all other kinds, because judges aren't politicians, even if they have been every day of their lives up to the point when, they hope, they put on judicial robes. And the courts may legitimately place limitations of very certain sorts on their fund-raising. Yes, with the chief writing the opinion, there was an opportunity to minimize any language that might come back to haunt the Loonies when it comes to other attempts to keep some kind of lid on fund-raising.

Well, our legal eagle, ThinkProgress's Ian Millhiser, is here to tell us that in the process the chief kind of let the cat out of the bag, in a post called, "Chief Justice Roberts Accidentally Reveals Everything That’s Wrong With Citizens United In Four Sentences." It seems the chief worked so frenetically to define things judges mustn't do, he left the clear implication that those are things that holdes of other elected offices may.

Here's Ian (links onsite):
On Wednesday, a 5-4 Supreme Court held in Williams-Yulee v. Florida Bar that states may “prohibit judges and judicial candidates from personally soliciting funds for their campaigns.” It was a small but symbolically important victory for supporters of campaign finance laws, as it showed that there was actually some limit on the Roberts Court’s willingness to strike down laws limiting the influence of money in politics.

Chief Justice John Roberts’s opinion for the Court in Williams-Yulee is certainly better for campaign finance regulation than a decision striking down this limit on judicial candidates — had the case gone the other way, judges could have been given the right to solicit money from the very lawyers who practice before them. Yet Roberts also describes judges as if they are special snowflakes who must behave in a neutral and unbiased way that would simply be inappropriate for legislators, governors and presidents:
States may regulate judicial elections differently than they regulate political elections, because the role of judges differs from the role of politicians. Politicians are expected to be appropriately responsive to the preferences of their supporters. Indeed, such “responsiveness is key to the very concept of self-governance through elected officials.” The same is not true of judges. In deciding cases, a judge is not to follow the preferences of his supporters, or provide any special consideration to his campaign donors. A judge instead must “observe the utmost fairness,” striving to be “perfectly and completely independent, with nothing to influence or controul [sic] him but God and his conscience.” As in White, therefore, our precedents applying the First Amendment to political elections have little bearing on the issues here.

Most Americans would undoubtedly agree that judges should not “follow the preferences” of their political supporters, as they would agree that judges should not “provide any special consideration to his campaign donors.” But the implication of the passage quoted above is that members of Congress, state lawmakers, governors and presidents should provide such consideration to their supporters and to their donors. The President of the United States is the president of the entire United States. A member of Congress represents their entire constituency. Yet Roberts appears to believe that they should “follow the preferences” of their supporters and give “special consideration” to the disproportionately wealthy individuals who fund their election.

This view of lawmakers obedient to a narrow segment of the nation is not new. To the contrary, it drove much of the Court’s widely maligned campaign finance decision in Citizens United v. FEC. Justice Anthony Kennedy’s majority opinion in Citizens United does not simply argue that “[f]avoritism and influence” are unavoidable in a representative democracy, it appears to suggest that they are a positive good. “It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors,” Kennedy wrote in Citizens United. “Democracy,” he added “is premised on responsiveness.”
Wouldn't it be nice if somebody could make this come back to haunt the chief?

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