If there is one thing that the Roberts Court seems consistently willing to protect, it’s speech – even controversial or unpopular speech like violent video games, protests at the funeral of a fallen soldier, lies about receiving military medals, and dog-fighting videos. And for the Court’s five more conservative Justices, this enthusiasm for the First Amendment extends to the campaign-finance arena. In recent years, a closely divided Court has struck down a ban on independent campaign spending by corporations and unions as well as the overall caps on how much one person can contribute to campaigns for federal office. But yesterday’s oral argument in Williams-Yulee v. The Florida Bar, a Tampa lawyer’s challenge to a Florida rule that prohibited her from personally contacting would-be donors to ask them to contribute to her campaign for a job as a trial judge, hinted that, when it comes to the First Amendment, judges might be different. After all, some Justices suggested, it would be undignified for judges – who, Justice Ruth Bader Ginsburg said, are supposed to be “above the fray” – to go around asking people for money.Meantime, there were protestors in the High Court yesterday:
Arguing on behalf of Lanell Williams-Yulee, attorney Andrew Pincus told the nine Justices that Florida had punished his client for sending out form letters asking for contributions that were “completely” legal in Florida. And if the Florida rule prohibiting personal solicitations by potential judges is really intended to protect the would-be donors from feeling coerced to contribute, Pincus argued, then at the very least there should be no ban for mass mailings like the one at issue in this case, which are so impersonal that they don’t place any pressure on the people who receive them. But Justice Anthony Kennedy countered that Pincus’s proposed rule would make it difficult for courts to draw a line between what is and is not allowed. There are “all sorts of gradations,” he told Pincus. What about a letter from a potential judge to one person? What about a letter to five people?
Other Justices, such as Justice Antonin Scalia, suggested that there was more to the rule than just preventing coercion – for example, an interest in judges being dignified. Scalia observed that “there’s stuff we don’t let judges do” – such as publish op-eds in newspapers to respond to criticisms of their decisions.
Pincus may have found more success with his argument that the overall scheme of the Florida rule doesn’t make sense. After all, for example, although would-be judges can’t contact potential donors to ask for money, they can send notes directly to donors to thank them for their contributions, and their campaign committees can reach out on their behalf. The additional step of banning personal solicitations by judges, he contended, doesn’t actually make any difference. Some of the Court’s more liberal Justices were skeptical, arguing that the extra personal touch does make a difference when you are asking for money. Justice Sonia Sotomayor noted that it’s “very, very, very rare” for a lawyer to turn her down when she makes a request. Getting a signed letter or personal phone call from a judge, she suggested, would be more likely to lead to a contribution than a letter signed by the judge’s campaign committee. Justice Stephen Breyer echoed these concerns, telling Pincus that his “instinct is” that when someone else writes the letter, it doesn’t have the same effect.
But that argument seemed to find more traction with some of the Court’s more conservative Justices. When Barry Richard, arguing on behalf of the Florida Bar, emphasized that the Florida rule was designed to cut the direct link between a would-be judge and donor that creates corruption when a donor expects to receive something for his contribution, Justice Scalia rejected that premise. Once you can send a thank-you note directly to a donor to thank him for the campaign contribution, Scalia insisted, that’s no longer true, because there is a direct link. And Justice Samuel Alito asked Richard (somewhat rhetorically) to explain what additional damage would result from Williams-Yulee’s direct contact with would-be donors, compared with having a campaign committee send out fundraising letters which specifically say that the judge gave the committee the donor’s name, that the committee will let the judge know if a contribution is made, and that the judge will then write a thank-you note.
A handful of spectators disrupted the opening of Wednesday morning’s Supreme Court session by rising one by one from their seats to shout protests over the Citizens United decision and other populist themes on the fifth anniversary of the controversial ruling.Just after the Justices had taken the bench at 10 a.m., and as they were about to announce opinions, a woman stood from her seat near the back of the courtroom and said, “I rise on behalf of democracy.” She continued with a mention of Citizens United, the 2010 ruling that removed limits on independent political expenditures by corporations and unions. Three Supreme Court police officers quickly converged on her, causing a loud commotion as they pushed through an area of the courtroom where single wooden chairs are in use, forcefully subdued her, and then removed her from the courtroom.
As what at first seemed like the lone demonstrator was removed, Chief Justice John G. Roberts Jr. quipped, “Our second order of business this morning …” to laughs from the crowded courtroom.
But before he could finish that thought, a second demonstrators stood and said, “One person, one vote.” It was perhaps a continuation of the Citizens United theme, or a reference to a key phrase from the Court’s voting rights jurisprudence. As the second protestor was being approached by officers, a third and a fourth one stood and uttered similar lines.
The Chief Justice was heard to mutter, “Oh, please.”As more officers entered the courtroom to deal with those protestors, a man in a back corner stood and said, “We are the ninety-nine percent,” a populist slogan referring to those not in the wealthiest one percent of the nation. After he delivered the line, this protestor looked around nervously as there were no police officers immediately near him.As another protestor rose near the same corner, the Chief Justice felt obliged to come to the aid of the police force. “We have a couple of more over here,” Roberts said, pointing to the corner.
After six or seven demonstrators had said their lines and were removed, which had taken several minutes, it appeared the protest was over.
“We will now continue with our tradition of having open court in the Supreme Court,” Chief Justice Roberts said. He announced that Justice Sonia Sotomayor would deliver the first opinion of the day, and the rhythms of the courtroom soon settled back to normalcy.