WILLIAMS-YULEE v. FLORIDA BAR
No. 13-1499
SUPREME COURT OF THE UNITED STATES
April 29, 2015
575 U.S. ___ (2015)
CERTIORARI TO THE SUPREME COURT OF FLORIDA
Syllabus
NOTE: Whеre it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
Syllabus
WILLIAMS-YULEE v. FLORIDA BAR
CERTIORARI TO THE SUPREME COURT OF FLORIDA
No. 13-1499. Argued January 20, 2015—Decided April 29, 2015
Florida is one of 39 States where voters elect judges at the polls. To promote public confidence in the integrity of the judiciary, the Florida Supreme Court adopted Canon 7C(1) of its Code of Judicial Conduct, which provides that judicial candidates “shall not personally solicit campaign funds . . . but may establish committees of responsible persons” to raise money for election campaigns.
Petitioner Lanell Williams-Yulee (Yulee) mailed and posted online a letter soliciting financial contributions to her campaign for judicial office. The Florida Bar disciplined her for violating a Florida Bar Rule requiring candidates to comply with Canon 7C(1), but Yulee contended that the First Amendment protects a judicial candidate‘s right to personally solicit campaign funds in an election. The Florida Supreme Court upheld the disciplinary sanctions, concluding that Canon 7C(1) is narrowly tailored to serve the State‘s compelling interest.
Held: The judgment is affirmed.
138 So. 3d 379, affirmed.
CHIEF JUSTICE ROBERTS delivered the opinion of the Court, except as to Part II, concluding that the First Amendment permits Canon 7C(1)‘s ban on the personal solicitation of campaign funds by judicial candidates. Pp. 8-22.
(a) Florida‘s interest in preserving public confidence in the integrity of its judiciary is compelling. The State may conclude that judges, charged with exercising strict neutrality and independence, cannot supplicate campaign donors without diminishing public confidence in judicial integrity. Simply put, the public may lack confidence in a judge‘s ability to administer justice without fear or favor if he comes to office by asking for favors. This Court‘s precedents have recognized the “vital state interest” in safeguarding “public confidence in
A State‘s interest in preserving public confidence in the integrity of its judiciary extends beyond its interest in preventing the appearance of corruption in legislative and executive elections, because a judge‘s role differs from that of a politician. Republican Party of Minn. v. White, 536 U. S. 765, 783. Unlike a politician, who is expected to be appropriately responsive to the preferences of supporters, a judge in deciding cases may not follow the preferences of his supporters or provide any special consideration to his campaign donors. As in White, therefore, precedents applying the First Amendment to political elections have little bearing on the issues here.
The vast majority of elected judges in States allowing personal solicitation serve with fairness and honor, but in the eyes of the public, a judicial candidate‘s personal solicitation could result (even unknowingly) in “a possible temptation . . . which might lead him not to hold the balance nice, clear and true.” Tumey v. Ohio, 273 U. S. 510, 532. That risk is especially pronounced where most donors are lawyers and litigants who may appear before the judge they are supporting. In short, it is the regrettable but unavoidable appearance that judges who personally ask for money may diminish their integrity that prompted the Supreme Court of Florida and most other States to sever the direct link between judicial candidates and campaign contributors. Pp. 9-12.
(b) Canon 7C(1) raises no fatal underinclusivity concerns. The solicitation ban aims squarely at the conduct most likely to undermine public confidence in the integrity of the judiciary: personal requests for money by judges and judicial candidates. The Canon applies evenhandedly to all judges and judicial candidates, regardless of viewpoint or means of solicitation. And unlike some laws that have been found impermissibly underinclusive, Canon 7C(1) is not riddled with exceptions.
Yulee relies heavily on the provision of Canon 7C(1) that allows solicitation by a candidate‘s campaign committee. But Florida, along with most other States, has reasonably concluded that solicitation by the candidate personally creates a categorically different and more severe risk of undermining public confidence than does solicitation by a campaign committee. When the judicial candidate himself asks for money, the stakes are higher for all involved. A judicial candidate
Permitting a judicial candidate to write thank you notes to campaign donors likewise does not detract from the State‘s interest in preserving public confidence in the integrity of the judiciary. The State‘s compelling interest is implicated most direсtly by the candidate‘s personal solicitation itself. A failure to ban thank you notes for contributions not solicited by the candidate does not undercut the Bar‘s rationale.
In addition, the State has a good reason for allowing candidates to write thank you notes and raise money through committees. These accommodations reflect Florida‘s effort to respect the First Amendment interests of candidates and their contributors—to resolve the “fundamental tension between the ideal character of the judicial office and the real world of electoral politics.” Chisom v. Roemer, 501 U. S. 380, 400. The State should not be punished for leaving open more, rather than fewer, avenues of expression, especially when there is no indication of a pretextual motive for the selective restriction of speech. Pp. 12-16.
(c) Canon 7C(1) is also not overinclusive. By any measure, it restricts a narrow slice of speech. It leaves judicial candidates free to discuss any issue with any person at any time; to write letters, give speeches, and put up billboards; to contact potential supporters in person, on the phone, or online; and to promote their campaigns through the media. Though they cannot ask for money, they can direct their campaign committees to do so.
Yulee concedes that Canon 7C(1) is valid in numerous applications, but she contends that the Canon cannot constitutionally be applied to her chosen form of solicitation: a letter posted online and distributed via mass mailing. This argument misperceives the breadth of the compelling interest underlying Canon 7C(1). Florida has reasonably determined that personal appeals for money by a judicial candidate inherently create an appearance of impropriety that may cause the public to lose confidence in thе integrity of the judiciary. That interest may be implicated to varying degrees in particular contexts, but the interest remains whenever the public perceives the judge person-
Yulee errs in contending that Florida can accomplish its compelling interest through recusal rules and campaign contribution limits. A rule requiring recusal in every case in which a lawyer or litigant made a campaign contribution would disable many jurisdictions, and a flood of postelection recusal motions could exacerbate the very appearance problem the State is trying to solve. As for contribution limits, Florida already applies them to judicial elections, and this Court has never held that adopting such limits precludes a State from pursuing its compelling interests through additional means.
The desirability of judicial elections is a question that has sparked disagreement for more than 200 years, but it is not the Court‘s place to resolve that enduring debate. The Court‘s limited task is to apply the Constitution to the question presented in this case. Judicial candidates have a First Amendment right to speak in support of their campaigns. States have a compelling interest in preserving public confidence in their judiciaries. When the State adopts a narrowly tailored restriction like the one at issue here, those principles do not conflict. A State‘s decision to elect judges does not compel it to compromise public confidence in their integrity. Pp. 16-22.
ROBERTS, C. J., delivered the opinion of the Court, except as to Part II. BREYER, SOTOMAYOR, and KAGAN, JJ., joined that opinion in full, and GINSBURG, J., joined except as to Part II. BREYER, J., filed a concurring opinion. GINSBURG, J., filed an opinion concurring in part and concurring in the judgment, in which BREYER, J., joined as to Part II. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined. KENNEDY, J., and ALITO, J., filed dissenting opinions.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 13-1499
LANELL WILLIAMS-YULEE, PETITIONER v. THE FLORIDA BAR
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA
[April 29, 2015]
CHIEF JUSTICE ROBERTS delivered the opinion of the Court, except as to Part II.
Our Founders vested authority to appoint federal judges in the President, with the advice and consent of the Senate, and entrusted those judges to hold their offices during good behavior. The Constitution permits States to make a different choice, and most of them have done so. In 39 States, voters elect trial or appellate judges at the polls. In an effort to preserve public confidence in the integrity of their judiciaries, many of those States prohibit judges and judicial candidates from personally soliciting funds for their campaigns. We must decide whether the First Amendment permits such restrictions on speech.
We hold that it does. Judges are not politicians, even when they come to the bench by way of the ballot. And a State‘s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money. We affirm the judgment of the Florida Supreme Court.
A
When Florida entered the Union in 1845, its Constitution provided for trial and appellate judges to be elected by the General Assembly. Florida soon followed more than a dozen of its sister States in transferring authority to elect judges to the voting public. See J. Shugerman, The People‘s Courts: Pursuing Judicial Independence in America 103-122 (2012). The experiment did not last long in the Sunshine State. The war came, and Florida‘s 1868 Constitution returned judicial selection to the political branches. Over time, however, the people reclaimed the power to elect the state bench: Supreme Court justices in 1885 and trial court judges in 1942. See Little, An Overview of the Historical Development of the Judicial Article of the Florida Constitution, 19 Stetson L. Rev. 1, 40 (1989).
In the early 1970s, four Florida Supreme Court justices resigned from office following corruption scandals. Florida voters responded by amending their Constitution again. Under the system now in place, appellate judges are appointed by the Governor from a list of candidates proposed by a nominating committee—a process known as “merit selection.” Then, every six years, voters decide whether to retain incumbent appellate judges for another term. Trial judges are still elected by popular vote, unless the local jurisdiction opts instead for merit selection.
Amid the corruption scandals of the 1970s, the Florida Supreme Court adopted a new Code of Judicial Conduct. 281 So. 2d 21 (1973). In its present form, the first sentence of Canon 1 reads, “An independent and honorable judiciary is indispensable to justice in our society.” Code of Judicial Conduct for the State of Florida 6 (2014). Canon 1 instructs judges to observe “high standards of conduct” so that “the integrity and independence of the judiciary may
Canon 7C(1) governs fundraising in judicial elections. The Canon, which is based on a provision in the American Bar Association‘s Model Code of Judicial Conduct, provides:
“A candidate, including an incumbent judge, for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds, or solicit attorneys for publicly stated support, but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate‘s campaign and to obtain public statements of support for his or her candidacy. Such committees are not prohibited from soliciting campaign contributions and public support from any person or corporation authorized by law.” Id., at 38.
Florida statutes impose additional restrictions on campaign fundraising in judicial elections. Contributors may not donate more than $1,000 per election to a trial court candidate or more than $3,000 per retention election to a Supreme Court justice.
Judicial candidates can seek guidance about campaign ethics rules from the Florida Judicial Ethics Advisory Committee. The Committee has interpreted Canon 7 to allow a judicial candidate to serve as treasurer of his own
Like Florida, most other States prohibit judicial candidates from sоliciting campaign funds personally, but allow them to raise money through committees. According to the American Bar Association, 30 of the 39 States that elect trial or appellate judges have adopted restrictions similar to Canon 7C(1). Brief for American Bar Association as Amicus Curiae 4.
B
Lanell Williams-Yulee, who refers to herself as Yulee, has practiced law in Florida since 1991. In September 2009, she decided to run for a seat on the county court for Hillsborough County, a jurisdiction of about 1.3 million people that includes the city of Tampa. Shortly after filing paperwork to enter the race, Yulee drafted a letter announcing her candidacy. The letter described her experience and desire to “bring fresh ideas and positive solutions to the Judicial bench.” App. to Pet. for Cert. 31a. The letter then stated:
“An early contribution of $25, $50, $100, $250, or $500, made payable to ‘Lanell Williams-Yulee Campaign for County Judge‘, will help raise the initial funds needed to launch the campaign and get our message out to the public. I ask for your support [i]n meeting the primary election fund raiser goals. Thank you in advance for your support.” Id., at 32a.
Yulee signed the letter and mailed it to local voters. She also posted the letter on her campaign Web site.
Yulee‘s bid for the bench did not unfold as she had hoped. She lost the primary to the incumbent judge. Then the Florida Bar filed a complaint against her. As relevant here, the Bar charged her with violating Rule 4-
Yulee admitted that she had signed and sent the fundraising letter. But she argued that the Bar could not discipline her for that conduct because the First Amendment protects a judicial candidate‘s right to solicit сampaign funds in an election.* The Florida Supreme Court appointed a referee, who held a hearing and recommended a finding of guilt. As a sanction, the referee recommended that Yulee be publicly reprimanded and ordered to pay the costs of the proceeding ($1,860). App. to Pet. for Cert. 19a-25a.
The Florida Supreme Court adopted the referee‘s recommendations. 138 So. 3d 379 (2014). The court explained that Canon 7C(1) “clearly restricts a judicial candidate‘s speech” and therefore must be “narrowly tailored to serve a compelling state interest.” Id., at 384. The court held that the Canon satisfies that demanding inquiry. First, the court reasoned, prohibiting judicial candidates from personally soliciting funds furthers Florida‘s compelling interest in “preserving the integrity of [its] judiciary and maintaining the public‘s confidence in an impartial judiciary.” Ibid. (internal quotation marks omitted; alteration in original). In the court‘s view, “personal solicitation of campaign funds, even by mass mailing, raises an appearance of impropriety and calls into question, in the public‘s mind, the judge‘s impartiality.” Id., at 385. Second, the court concluded that Canon 7C(1)
The Florida Supreme Court acknowledged that some Federal Courts of Appeals—“whose judges have lifetime appointments and thus do not have to engage in fundraising“—had invalidated restrictions similar to Canon 7C(1). 138 So. 3d, at 386, n. 3. But the court found it persuasive that every State Supreme Court that had considered similar fundraising provisions—along with several Federal Courts of Appeals—had upheld the laws against First Amendment challenges. Id. at 386. Florida‘s chief justice and one associate justice dissented. Id., at 389. We granted certiorari. 573 U. S. ___ (2014).
II
The First Amendment provides that Congress “shall make no law . . . abridging the freedom of speech.” The Fourteenth Amendment makes that prohibition applicable to the States. Stromberg v. California, 283 U. S. 359, 368 (1931). The parties agree that Canon 7C(1) restricts Yulee‘s speech on the basis of its content by prohibiting her from soliciting contributions to her election campaign. The parties disagree, however, about the level of scrutiny that should govern our review.
We have applied exacting scrutiny to laws restricting the solicitation of contributions to charity, upholding the speech limitations only if they are narrowly tailored to serve a compelling interest. See Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 798 (1988); id., at 810 (Rehnquist, C. J., dissenting). As we have explained, noncommercial solicitation “is characteristically
The principles underlying these charitable solicitation cases apply with even greater force here. Before asking for money in her fundraising letter, Yulee explained her fitness for the bench and expressed her vision for the judiciary. Her stated purpose for the solicitation was to get her “message out to the public.” App. to Pet. for Cert. 32a. As we have long recognized, speech about public issues and the qualifications of candidates for elected office commands the highest level of First Amendment protection. See Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 223 (1989). Indeed, in our only prior case concerning speech restrictions on a candidate for judicial office, this Court and both parties assumed that strict scrutiny applied. Republican Party of Minn. v. White, 536 U. S. 765, 774 (2002).
Although the Florida Supreme Court upheld Canon 7C(1) under strict scrutiny, the Florida Bar and several amici contend that we should subject the Canon to a more permissive standard: that it be “closely drawn” to match a “sufficiently important interest.” Buckley v. Valeo, 424 U. S. 1, 25 (1976) (per curiam). The “closely drawn” standard is a poor fit for this case. The Court adopted that test in Buckley to address a claim that campaign contribution limits violated a contributor‘s “freedom of political association.” Id., at 24-25. Here, Yulee does not claim that Canon 7C(1) violates her right to free association; she argues that it violates her right to free speech. And the Florida Bar can hardly dispute that the Canon infringes Yulee‘s freedom to discuss candidates and public
As several of the Bar‘s amici note, we applied the “closely drawn” test to solicitation restrictions in McConnell v. Federal Election Comm‘n, 540 U. S. 93, 136 (2003), overruled in part by Citizens United v. Federal Election Comm‘n, 558 U. S. 310 (2010). But the Court in that case determined that the solicitation restrictions operated primarily to prevent circumvention of the contribution limits, which were the subject of the “closely drawn” test in the first place. 540 U. S., at 138-139. McConnell offers no help to the Bar here, because Florida did not adopt Canon 7C(1) as an anticircumvention measure.
In sum, we hold today what we assumed in White: A State may restrict the speech of a judicial candidate only if the restriction is narrowly tailored to serve a compelling interest.
III
The Florida Bar faces a demanding task in defending Canon 7C(1) against Yulee‘s First Amendment challenge. We have emphasized that “it is the rare case” in which a State demonstrates that a speech restriction is narrowly tailored to serve a compelling interest. Burson v. Freeman, 504 U. S. 191, 211 (1992) (plurality opinion). But those cases do arise. See ibid.; Holder v. Humanitarian Law Project, 561 U. S. 1, 25-39 (2010); McConnell, 540 U. S., at 314 (opinion of KENNEDY, J.); cf. Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 237 (1995) (“we wish to dispel the notion that strict scrutiny is ‘strict in theory, but fatal in fact’ “). Here, Canon 7C(1) advances the State‘s compelling interest in preserving public confidence in the integrity of the judiciary, and it does so through means narrowly tailored to avoid unnecessarily abridging
A
The Florida Supreme Court adopted Canon 7C(1) to promote the State‘s interests in “protecting the integrity of the judiciary” and “maintaining the public‘s confidence in an impartial judiciary.” 138 So. 3d, at 385. The way the Canon advances those interests is intuitive: Judges, charged with exercising strict neutrality and independence, cannot supplicate campaign donors without diminishing public confidence in judicial integrity. This principle dates back at least eight centuries to Magna Carta, which proclaimed, “To no one will we sell, to no one will we refuse or delay, right or justice.” Cl. 40 (1215), in W. McKechnie, Magna Carta, A Commentary on the Great Charter of King John 395 (2d ed. 1914). The same concept underlies the common law judicial oath, which binds a judge to “do right to all manner of people . . . without fear or favour, affection or ill-will,” 10 Encyclopaedia of the Laws of England 105 (2d ed. 1908), and the oath that each of us took to “administer justice without respect to persons, and do equal right to the poor and to the rich,”
The interest served by Canon 7C(1) has firm support in our precedents. We have recognized the “vital state interest” in safeguarding “public confidence in the fairness and integrity of the nation‘s elected judges.” Caperton v. A. T. Massey Coal Co., 556 U. S. 868, 889 (2009) (internal quotation marks omitted). The importance of public confidence in the integrity of judges stems from the place of the judiciary in the government. Unlike the executive or the legislature, the judiciary “has no influence over either the
The principal dissent observes that bans on judicial candidate solicitation lack a lengthy historical pedigree. Post, at 1-2 (opinion of SCALIA, J.). We do not dispute that fact, but it has no relevance here. As the precedent cited by the principal dissent demonstrates, a history and tradition of regulation are important factors in determining whether to recognize “new categories of unprotected speech.” Brown v. Entertainment Merchants Assn., 564 U. S. 786, 791 (2011); see post, at 1. But nobody argues that solicitation of campaign funds by judicial candidates is a category of unprotected speech. As explained above, the First Amendment fully applies to Yulee‘s speech. The question is instead whether that Amendment permits the particular regulation of speech at issue here.
The parties devote considerable attention to our cases analyzing campaign finance restrictions in political elections. But a State‘s interest in preserving public confidence in the integrity of its judiciary extends beyond its interest in preventing the appearance of corruption in legislative and executive elections. As we explained in White, States may regulate judicial elections differently than they regulate political elеctions, because the role of judges differs from the role of politicians. 536 U. S., at 783; id., at 805 (GINSBURG, J., dissenting). Politicians are
The vast majority of elected judges in States that allow personal solicitation serve with fairness and honor. But “[e]ven if judges were able to refrain from favoring donors, the mere possibility that judges’ decisions may be motivated by the desire to repay campaign contributions is likely to undermine the public‘s confidence in the judiciary.” White, 536 U. S., at 790 (O‘Connor, J., concurring). In the eyes of the public, a judge‘s personal solicitation could result (even unknowingly) in “a possible temptation . . . which might lead him not to hold the balance nice, clear and true.” Tumey v. Ohio, 273 U. S. 510, 532 (1927). That risk is especially pronounced because most donors are lawyers and litigants who may appear before the judge they are supporting. See A. Bannon, E. Velasco, L. Casey, & L. Reagan, The New Politics of Judicial Elections: 2011-12, p. 15 (2013).
The concept of public confidence in judicial integrity does not easily reduce to precise definition, nor does it lend itself to proof by documentary record. But no one denies that it is genuine and compelling. In short, it is the
B
Yulee acknowledges the State‘s compelling interest in judicial integrity. She argues, however, that the Canon‘s failure to restrict other speech equally damaging to judicial integrity and its appearance undercuts the Bar‘s position. In particular, she notes that Canon 7C(1) allows a judge‘s campaign committee to solicit money, which arguably reduces public confidence in the integrity of the judiciary just as much as a judge‘s personal solicitation. Yulee also points out that Florida permits judicial candidates to write thank you notes to campaign donors, which ensures that candidates know who contributes and who does not.
It is always somewhat counterintuitive to argue that a law violates the First Amendment by abridging too little
Underinclusiveness can also reveal that a law does not actually advance a compelling interest. For example, a State‘s decision to prohibit newspapers, but not electronic media, from releasing the names of juvenile defendants suggested that the law did not advance its stated purpose of protecting youth privacy. Smith v. Daily Mail Publishing Co., 443 U. S. 97, 104-105 (1979).
Although a law‘s underinclusivity raises a red flag, the First Amendment imposes no freestanding “underinclusiveness limitation.” R. A. V. v. St. Paul, 505 U. S. 377, 387 (1992) (internal quotation marks omitted). A State need not address all aspects of a problem in one fell swoop; policymakers may focus on their most pressing concerns. We have accordingly upheld laws—even under strict scrutiny—that conceivably could have restricted even greater amounts of speech in service of their stated interests. Burson, 504 U. S., at 207; see McConnell, 540 U. S., at 207-208; Metromedia, Inc. v. San Diego, 453 U. S. 490, 511-512 (1981) (plurality opinion); Buckley, 424 U. S., at 105.
Viewed in light of these principles, Canon 7C(1) raises no fatal underinclusivity concerns. The solicitation ban aims squarely at the conduct most likely to undermine public confidence in the integrity of the judiciary: personal requests for money by judges and judicial candidates. The
Yulee relies heavily on the provision of Canon 7C(1) that allows solicitation by a candidate‘s campaign committee. But Florida, along with most other States, has reasonably concluded that solicitation by the candidate personally creates a categorically different and more severe risk of undermining public confidence than does solicitation by a campaign committee. The identity of the solicitor matters, as anyone who has encountered a Girl Scout selling cookies outside a grocery store can attest. When the judicial candidate himself asks for money, the stakes are higher for all involved. The candidate has personally invested his time and effort in the fundraising appeal; he has placed his name and reputation behind the request. The solicited individual knows that, and also knows that the solicitor might be in a position to singlehandedly make decisions of great weight: The same person who signed the fundraising letter might one day sign the judgment. This dynamic inevitably creates pressure for the recipient to comply, and it does so in a way that solicitation by a third party does not. Just as inevitably, the personal involvement of the candidate in the solicitation creates the public appearance that the candidate will remember who says yes, and who says no.
In short, personal solicitation by judicial candidates implicates a different problem than solicitation by campaign committees. However similar the two solicitations may be in substance, a State may conclude that they present markedly different appearances to the public. Florida‘s choice to allow solicitation by campaign commit-
Likewise, allowing judicial candidatеs to write thank you notes to campaign donors does not detract from the State‘s interest in preserving public confidence in the integrity of the judiciary. Yulee argues that permitting thank you notes heightens the likelihood of actual bias by ensuring that judicial candidates know who supported their campaigns, and ensuring that the supporter knows that the candidate knows. Maybe so. But the State‘s compelling interest is implicated most directly by the candidate‘s personal solicitation itself. A failure to ban thank you notes for contributions not solicited by the candidate does not undercut the Bar‘s rationale.
In addition, the State has a good reason for allowing candidates to write thank you notes and raise money through committees. These accommodations reflect Florida‘s effort to respect the First Amendment interests of candidates and their contributors—to resolve the “fundamental tension between the ideal character of the judicial office and the real world of electoral politics.” Chisom v. Roemer, 501 U. S. 380, 400 (1991). They belie the principal dissent‘s suggestion that Canon 7C(1) reflects general “hostility toward judicial campaigning” and has “nothing to do with the appearances created by judges’ asking for money.” Post, at 11. Nothing?
The principal dissent also suggests that Canon 7C(1) is underinclusive because Florida does not ban judicial candidates from asking individuals for personal gifts or loans. Post, at 10. But Florida law treats a personal “gift” or “loan” as a campaign contribution if the donor makes it “for the purpose of influencing the results of an election,”
Taken to its logical conclusion, the position advanced by Yulee and the principal dissent is that Florida may ban the solicitation of funds by judicial candidates only if the State bans all solicitation of funds in judicial elections. The First Amendment does not put a State to that all-or-nothing choice. We will not punish Florida for leaving open more, rather than fewer, avenues of expression, especially when there is no indication that the selective restriction of speech reflects a pretextual motive.
C
After arguing that Canon 7C(1) violates the First Amendment because it restricts too little speech, Yulee argues that the Canon violates the First Amendment because it restricts too much. In her view, the Canon is not narrowly tailored to advance the State‘s compelling interest through the least restrictive means. See United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 813 (2000).
Indeed, Yulee concedes—and the principal dissent seems to agree, post, at 8—that Canon 7C(1) is valid in numerous applications. Yulee acknowledges that Florida can prohibit judges from soliciting money from lawyers and litigants appearing before them. Reply Brief 18. In addition, she says the State “might” be able to ban “direct one-to-one solicitation of lawyers and individuals or businesses that could reasonably appear in the court for which the individual is a candidate.” Ibid. She also suggests that the Bar could forbid “in person” solicitation by judicial candidates. Tr. of Oral Arg. 7; cf. Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978) (permitting State to ban in person solicitation of clients by lawyers). But Yulee argues that the Canon cannot constitutionally be applied to her chosen form of solicitation: a letter posted online and distributed via mass mailing. No one, she contends, will lose confidence in the integrity of the judiciary based on personal solicitation to such a broad audience.
This argument misperceives the breadth of the compelling interest that underlies Canon 7C(1). Florida has reasonably determined that personal appeals for money by a judicial candidate inherently create an appearance of impropriety that may cаuse the public to lose confidence in the integrity of the judiciary. That interest may be implicated to varying degrees in particular contexts, but the interest remains whenever the public perceives the judge personally asking for money.
Moreover, the lines Yulee asks us to draw are unworkable. Even under her theory of the case, a mass mailing would create an appearance of impropriety if addressed to a list of all lawyers and litigants with pending cases. So would a speech soliciting contributions from the 100 most frequently appearing attorneys in the jurisdiction. Yulee says she might accept a ban on one-to-one solicitation, but is the public impression really any different if a judicial candidate tries to buttonhole not one prospective donor but two at a time? Ten? Yulee also agrees that in person solicitation creates a problem. But would the public‘s concern recede if the request for money came in a phone call or a text message?
We decline to wade into this swamp. The
In considering Yulee‘s tailoring arguments, we are mindful that most States with elected judges have determined that drawing a line between personal solicitation by candidates and solicitation by committees is necessary to preserve public confidence in the integrity of the judiciary. These considered judgments deserve our respect, especially because they reflect sensitive choices by States in an area central to their own governance—how to select those who “sit as their judges.” Gregory v. Ashcroft, 501 U. S. 452, 460 (1991).
Finally, Yulee contends that Florida can accomplish its compelling interest through the less restrictive means of recusal rules and campaign contribution limits. We disagree. A rule requiring judges to recuse themselves from every case in which a lawyer or litigant made a campaign contribution would disable many jurisdictions. And a flood of postelection recusal motions could “erode public confidence in judicial impartiality” and thereby exacerbate the very appearance problem the State is trying to solve. Caperton, 556 U. S., at 891 (ROBERTS, C. J., dissenting). Moreover, the rule that Yulee envisions could create a perverse incentive for litigants to make campaign contributions to judges solely as a means to trigger their later recusal—a form of peremptory strike against a judge that would enable transparent forum shopping.
As for campaign contribution limits, Florida already applies them to judicial elections.
In sum, because Canon 7C(1) is narrowly tailored to serve a compelling government interest, the
We likewise have no cause to consider whether the citizens of States that elect their judges have decided anything about the “oracular sanctity of judges” or whether judges are due “a hearty helping of humble pie.” Post, at 12. The principal dissent could be right that the decision to adopt judicial elections “probably springs,” at least in part, from a desire to make judges more accountable to the public, ibid., although the history on this matter is more complicated. See J. Shugerman, Thе People‘s Courts, at 5 (arguing that States adopted judicial elections to increase judicial independence). In any event, it is a
* * *
The desirability of judicial elections is a question that has sparked disagreement for more than 200 years. Hamilton believed that appointing judges to positions with life tenure constituted “the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.” The Federalist No. 78, at 465. Jefferson thought that making judges “dependent on none but themselves” ran counter to the principle of “a government founded on the public will.” 12 The Works of Thomas Jefferson 5 (P. Ford ed. 1905). The federal courts reflect the view of Hamilton; most States have sided with Jefferson. Both methods have given our Nation jurists of wisdom and rectitude who have devoted themselves to maintaining “the public‘s respect . . . and a reserve of public goodwill, without becoming subservient to public opinion.” Rehnquist, Judicial Independence, 38 U. Rich. L. Rev. 579, 596 (2004).
It is not our place to resolve this enduring debate. Our limited task is to apply the Constitution to the question presented in this case. Judicial candidates have a
The judgment of the Florida Supreme Court is
Affirmed.
No. 13-1499
LANELL WILLIAMS-YULEE, PETITIONER v. THE FLORIDA BAR
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA
[April 29, 2015]
JUSTICE BREYER, concurring.
As I have previously said, I view this Court‘s doctrine referring to tiers of scrutiny as guidelines informing our approach to the case at hand, not tests to be mechanically applied. See, e.g., United States v. Alvarez, 567 U. S. ___ (2012) (BREYER, J., concurring in judgment) (slip op., at 1-3); Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 400-403 (2000) (BREYER, J., concurring). On that understanding, I join the Court‘s opinion.
No. 13-1499
LANELL WILLIAMS-YULEE, PETITIONER v. THE FLORIDA BAR
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA
[April 29, 2015]
JUSTICE GINSBURG, with whom JUSTICE BREYER joins as to Part II, concurring in part and concurring in the judgment.
I
I join the Court‘s opinion save for Part II. As explained in my dissenting opinion in Republican Party of Minnesota v. White, 536 U. S. 765, 803 (2002), I would not apply exacting scrutiny to a State‘s endeavor sensibly to “differentiate elections for political offices . . . from elections designed to select those whose office it is to administer justice without respect to persons,” id., at 805.
II
I write separately to reiterate the substantial latitude, in my view, States should possess to enact campaign-finance rules geared to judicial elections. “Judges,” the Court rightly recognizes, “are not politicians,” ante, at 1, so “States may regulate judicial elections differently than they regulate political elections,” ante, at 10. And because “the role of judges differs from the role of politicians,” ibid., this Court‘s “precedents applying the
The Court‘s recent campaign-finance decisions, trained on political actors, should not hold sway for judicial elec-
For reasons spelled out in the dissenting opinions in Citizens United and McCutcheon, I would have upheld the legislation there at issue. But even if one agrees with those judgments, they are geared to elections for representative posts, and should have “little bearing” on judicial elections. Ante, at 11. “Favoritism,” i.e., partiality, if inevitable in the political arena, is disqualifying in the judiciary‘s domain. See Marshall v. Jerrico, Inc., 446 U. S. 238, 242 (1980) (“The
States may therefore impose different campaign-finance
In recent years, moreover, issue-oriented organizations and political action committees have spent millions of dollars opposing the reelection of judges whose decisions do not tow a party line or are alleged to be out of step with public opinion. Following the Iowa Supreme Court‘s 2009 invalidation of the State‘s same-sex marriage ban, for example, national organizations poured money into a successful campaign to remove three justices from that Court. J. Shugerman, The People‘s Courts: Pursuing Judicial Independence in America 3 (2012). Attack advertisements funded by issue or politically driven organizations portrayed the justices as political actors; they lambasted the Iowa Supreme Court for “usurp[ing] the will of voters.” A. Skaggs, M. da Silva, L. Casey, & C. Hall, The New Politics of Judicial Elections 2009–10, p. 9 (C. Hall ed. 2011) (internal quotation marks omitted).
Similarly portraying judges as belonging to another political branch, huge amounts have been spent on advertisements opposing retention of judges because they rendered unpopular decisions in favor of criminal defendants. D. Goldberg, S. Samis, E. Bender, & R. Weiss, The New Politics of Judicial Elections 2004, pp. 5, 10-11 (J. Rutledge ed. 2005) (hereinafter Goldberg). In North Caro-
Disproportionate spending to influence court judgments threatens both the appearance and actuality of judicial independence. Numerous studies report that the money pressure groups spend on judicial elections “can affect judicial decision-making across a broad range of cases.” Brief for Professors of Law, Economics, and Political Science as Amici Curiae 14 (hereinafter Professors’ Brief), see id., at 5-17; J. Shepherd & M. Kang, Skewed Justice 1 (2014), available at http://skewedjustice.org (All Internet materials as visited Apr. 24, 2015, and included in Clerk of Court‘s case file) (finding that a recent “explosion in spending on television attack advertisements . . . has made courts less likely to rule in favor of defendants in criminal appeals“).
How does the electorate perceive outsized spending on judicial elections? Multiple surveys over the past 13 years indicate that voters overwhelmingly believe direct contributions to judges’ campaigns have at least “some influ-
“A State‘s decision to elect its judges does not require it to tolerate these risks.” Ante, at 12. What may be true of happy families, L. Tolstoy, Anna Karenina 1 (R. Pevеar and L. Volokhonsky transls. 2000) (“All happy families are alike“), or of roses, G. Stein, Sacred Emily, in Geography and Plays 178, 187 (1922) (reprint 1968) (“Rose is a rose is a rose is a rose“), does not hold true in elections of every kind. States should not be put to the polar choices of either equating judicial elections to political elections, or else abandoning public participation in the selection of judges altogether. Instead, States should have leeway to “balance the constitutional interests in judicial integrity and free expression within the unique setting of an elected judiciary.” White, 536 U. S., at 821 (GINSBURG, J., dissenting).
No. 13-1499
LANELL WILLIAMS-YULEE, PETITIONER v. THE FLORIDA BAR
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA
[April 29, 2015]
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting.
An ethics canon adopted by the Florida Supreme Court bans a candidate in a judicial election from asking anyone, under any circumstances, for a contribution to his campaign. Faithful application of our precedents would have made short work of this wildly disproportionate restriction upon speech. Intent upon upholding the Canon, however, the Court flattens one settled
I
The first axiom of the
Rules against soliciting campaign contributions arrived more recently still. The ABA first proposed a canon advising against it in 1972, and a canon prohibiting it only in 1990. See Brief for American Bar Association as Amicus Curiae 2-4. Even now, 9 of the 39 States that elect judges allow judicial candidates to ask for campaign contributions. See id., at 4. In the absence of any long-settled custom about judicial candidates’ speech in general or their solicitations in particular, we have no basis for relaxing the rules that normally apply to laws that suppress speech because of content.
One likewise need not equate judges with politicians to see that the electoral setting calls for all the more vigilance in ensuring observance of the
Because Canon 7C(1) restricts fully protected speech on the basis of content, it presumptively violates the
II
The Court concludes that Florida may prohibit personal solicitations by judicial candidates as a means of preserving “public confidence in the integrity of the judiciary.” Ante, at 8. It purports to reach this destination by applying strict scrutiny, but it would be more accurate to say that it does so by applying the appearance of strict
A
The first sign that mischief is afoot comes when the Court describes Florida‘s compelling interest. The State must first identify its objective with precision before one can tell whether that interest is compelling and whether the speech restriction narrowly targets it. In White, for example, the Court did not allow a State to invoke hazy concerns about judicial impartiality in justification of an ethics rule against judicial candidates’ announcing their positions on legal issues. 536 U. S., at 775. The Court instead separately analyzed the State‘s concerns about judges’ bias against parties, preconceptions on legal issues, and openmindedness, and explained why each concern (and each for a different reason) did not suffice to sustain the rule. Id., at 775-780.
In stark contrast to White, the Court today relies on Florida‘s invocation of an ill-defined interest in “public confidence in judicial integrity.” The Court at first suggests that “judicial integrity” involves the “ability to administer justice without fear or favor.” Ante, at 9. 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. Ante, at 11 (emphasis added). When the Court turns to distinguishing in-person solicitation from solicitation by proxy, the any-possible-temptation standard no longer helps and thus drops out. The critical factors instead become the “pressure” a listener feels during a solicitation and the
B
The Court‘s twistifications have not come to an end; indeed, they are just beginning. In order to uphold Canon 7C(1) under strict scrutiny, Florida must do more than point to a vital public objective brooding overhead. The State must also meet a difficult burden of demonstrating that the speech restriction substantially advances the claimed objective. The State “bears the risk of uncertainty,” so “ambiguous proof will not suffice.” Entertainment Merchants, 564 U. S., at ___ (slip op., at 12). In an arresting illustration, this Court held that a law punishing lies about winning military decorations like the Congressional Medal of Honor failed exacting scrutiny, because the Government could not satisfy its “heavy burden” of proving that “the public‘s general perception of military awards is diluted by false claims.” United States v. Alvarez, 567 U. S. ___ (2012) (plurality opinion) (slip op., at 14).
Now that we have a case about the public‘s perception of judicial honor rather than its perception of military honors, the Justices of this Court change the rules. The Court announces, on the basis of its “intuiti[on],” that allowing personal solicitations will make litigants worry that “judges’ decisions may be motivated by the desire to repay campaign contributions.” Ante, at 11. But this case is not about whether Yulee has the right to receive campaign contributions. It is about whether she has the right to ask for campaign contributions that Florida‘s statutory law already allows her to receive. Florida bears the burden of showing that banning requests for lawful contributions will improve public confidence in judges—not just a little bit, but significantly, becausе “the Government does not have a compelling interest in each marginal percentage point by which its goals are advanced.” Entertainment Merchants, supra, at ___ (slip op., at 16, n. 9).
Neither the Court nor the State identifies the slightest evidence that banning requests for contributions will substantially improve public trust in judges. Nor does common sense make this happy forecast obvious. The concept of judicial integrity “dates back at least eight centuries,” ante, at 9, and judicial elections in America date back more than two centuries, supra, at 1—but rules against personal solicitations date back only to 1972, supra, at 2. The peaceful coexistence of judicial elections and personal solicitations for most of our history calls into doubt any claim that allowing personal solicitations would imperil public faith in judges. Many States allow judicial candidates to ask for contributions even today, but nobody suggests that public confidence in judges fares worse in these jurisdictions than elsewhere. And in any event, if candidates’ appeals for money are ““characteristically intertwined” with discussion of qualifications and views on public issues, ante, at 7 (plurality opinion), how can the Court be so sure that the public will regard them as im-
C
But suppose we play along with the premise that prohibiting solicitations will significantly improve the public reputation of judges. Even then, Florida must show that the ban restricts no more speech than necessary to achieve the objective. See Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989).
Canon 7C(1) falls miles short of satisfying this requirement. The Court seems to accept Florida‘s claim that solicitations erode public confidence by creating the perception that judges are selling justice to lawyers and litigants. Ante, at 9. Yet the Canon prohibits candidates from asking for money from anybody—even from someone who is neither lawyer nor litigant, even from someone who (because of recusal rules) cannot possibly appear before the candidate as lawyer or litigant. Yulee thus may not call up an old friend, a cousin, or even her parents to ask for a donation to her campaign. The State has not come up with a plausible explanation of how soliciting someone who has no chance of appearing in the candidate‘s court will diminish public confidence in judges.
No less important, Canon 7C(1) bans candidates from asking for contributions even in messages that do not target any listener in particular—mass-mailed letters, flyers posted on telephone poles, speeches to large gatherings, and Web sites addressed to the general public. Messages like these do not share the features that lead the Court to pronounce personal solicitations a menace to public confidence in the judiciary. Consider online solicitations. They avoid ““the spectacle of lawyers or potential
Perhaps sensing the fragility of the initial claim that all solicitations threaten public confidence in judges, the Court argues that “the lines Yulee asks [it] to draw are unworkable.” Ante, at 18. That is a difficulty of the Court‘s own imagination. In reality, the Court could have chosen from a whole spectrum of workable rules. It could have held that States may regulate no more than solicitation of participants in pending cases, or solicitation of people who are likely to appear in the candidate‘s court, or even solicitation of any lawyer or litigant. And it could have ruled that candidates have the right to make fundraising appeals that are not directed to any particular listener (like requests in mass-mailed letters), or at least fundraising appeals plainly directed to the general public (like requests placed online). The Supreme Court of Florida has made similar accommodations in other settings. It allows sitting judges to solicit memberships in civic organizations if (among other things) the solicitee is not “likely ever to appear before the court on which the judge serves.”
The Court‘s accusation of unworkability also suffers from a bit of a pot-kettle problem. Consider the many
real-world questions left open by today‘s decision. Does the
D
Even if Florida could show that banning all personal appeals for campaign funds is necessary to protect public confidence in judicial integrity, the Court must overpower one last sentinel of free speech before it can uphold Canon 7C(1). Among its other functions, the
The Court‘s decision disregards these principles. The Court tells us that “all personal solicitations by judicial candidates create a public appearance that undermines confidence in the integrity of the judiciary.” Ante, at 19. But Canon 7C(1) does not restrict all personal solicitations; it restricts only personal solicitations related to campaigns. The part of the Canon chаllenged here prohibits personal pleas for “campaign funds,” and the Canon elsewhere prohibits personal appeals to attorneys for “publicly stated support.” Judicial Conduct Code 38. So although Canon 7C(1) prevents Yulee from asking a lawyer for a few dollars to help her buy campaign pamphlets, it does not prevent her asking the same lawyer for a personal loan, access to his law firm‘s luxury suite at the local football stadium, or even a donation to help her fight the Florida Bar‘s charges. What could possibly justify these distinctions? Surely the Court does not believe that requests for campaign favors erode public confidence in a way that requests for favors unrelated to elections do not. Could anyone say with a straight face that it looks worse for a candidate to say “please give my campaign $25” than to say “please give me $25“?*
SCALIA, J., dissenting
Fumbling around for a fig-leaf, the Court says that “the
Even on thе Court‘s own terms, Canon 7C(1) cannot stand. The Court concedes that “underinclusiveness can raise ‘doubts about whether the government is in fact pursuing the interest it invokes.‘” Ante, at 13. Canon 7C(1)‘s scope suggests that it has nothing to do with the appearances created by judges’ asking for money, and everything to do with hostility toward judicial campaign
The Court tries to strike a pose of neutrality between appointment and election of judges, but no one should be deceived. A Court that sees impropriety in a candidate‘s request for any contributions to his election campaign does not much like judicial selection by the people. One cannot have judicial elections without judicial campaigns, and judicial campaigns without funds for campaigning, and funds for campaigning without asking for them. When a society decides that its judges should be elected, it necessarily decides that selection by the people is more important than the oracular sanctity of judges, their immunity from the (shudder!) indignity of begging for funds, and their exemption from those shadows of impropriety that fall over the proletarian public officials who must run for office. A free society, accustomed to electing its rulers, does not much cаre whether the rulers operate through statute and executive order, or through judicial distortion of statute, executive order, and constitution. 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 should
* * *
This Court has not been shy to enforce the
I respectfully dissent.
SUPREME COURT OF THE UNITED STATES
No. 13-1499
LANELL WILLIAMS-YULEE, PETITIONER v. THE FLORIDA BAR
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA
[April 29, 2015]
JUSTICE KENNEDY, dissenting.
The dissenting opinion by JUSTICE SCALIA gives a full and complete explanation of the reasons why the Court‘s opinion contradicts settled
With all due respect for the Court, it seems fair and necessary to say its decision rests on two premises, neither one correct. One premise is that in certain elections—here an election to choose the best qualified judge—the public lacks the necessary judgment to make an informed choice. Instead, the State must protect voters by altering the usual dynamics of free speech. The other premise is that since judges should be accorded special respect and dignity, their election can be subject to certain content-based rules that would be unacceptable in other elections. In my respectful view neither premise can justify the speech restriction at issue here. Although States have a compelling interest in seeking to ensure the appearance and the reality of an impartial judiciary, it does not follow that the State may alter basic
While any number of troubling consequences will follow from the Court‘s ruling, a simple example can suffice to illustrate the dead weight its decision now ties to public debate. Assume a judge retires, and two honest lawyers, Doe and Roe, seek the vacant position. Doe is a respected, prominent lawyer who has been active in the community and is well known to business and civic leaders. Roe, a lawyer of extraordinary ability and high ethical standards, keeps a low profile. As soon as Doe announces his or her
The
Elections are a paradigmatic forum for speech. Though present day campaign rhetoric all too often might thwart or obscure deliberative discourse, the idea of elections is that voters can engage in, or at least consider, a principled debate. That debate can be a means to find consensus for a civic course that is prudent and wise. This pertains both to issues and to the choice of elected officials. The
Whether an election is the best way to choose a judge is itself the subject of fair debate. But once the people of a State choose to have elections, the
It is not within our Nation‘s
If there is concern about principled, decent, and thoughtful discourse in election campaigns, the
In addition to narrowing the
SUPREME COURT OF THE UNITED STATES
No. 13-1499
LANELL WILLIAMS-YULEE, PETITIONER v. THE FLORIDA BAR
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF FLORIDA
[April 29, 2015]
JUSTICE ALITO, dissenting.
I largely agree with what I view as the essential elements of the dissents filed by JUSTICES SCALIA and KENNEDY. The Florida rule before us regulates speech that is part of the process of selecting those who wield the power of the State. Such speech lies at the heart of the protection provided by the
Indeed, this rule is about as narrowly tailored as a burlap bag. It applies to all solicitations made in the name of а candidate for judicial office—including, as was the case here, a mass mailing. It even applies to an ad in a newspaper. It applies to requests for contributions in any amount, and it applies even if the person solicited is not a lawyer, has never had any interest at stake in any case in the court in question, and has no prospect of ever having any interest at stake in any litigation in that court.
When petitioner sent out a form letter requesting campaign contributions, she was well within her