Academic journal article The University of Memphis Law Review

Are Judges Politicians?: An Analysis of Williams-Yulee V. the Florida Bar and Its Constitutional Impact on Judicial Independence and Judicial Ethics Codes across the U.S

Academic journal article The University of Memphis Law Review

Are Judges Politicians?: An Analysis of Williams-Yulee V. the Florida Bar and Its Constitutional Impact on Judicial Independence and Judicial Ethics Codes across the U.S

Article excerpt

I.INTRODUCTION

In Williams-Yulee v. Florida Bar, the U.S. Supreme Court held by a vote of 5-4 that a ban on judicial candidates directly soliciting campaign funds did not violate the First Amendment.1 Chief Justice John Roberts, writing the opinion of the Court, found that the proper test to judge the case was strict scrutiny and that the law in question had both a compelling interest and was narrowly tailored.2 Justice Ruth Bader Ginsburg concurred, arguing that, although she agreed with the majority's determination that the Florida law was constitutional, "closely drawn" scrutiny was the appropriate standard of review.3 Three of the four dissenters penned opinions contending that the Florida ethics rule violated the First Amendment because it failed strict scrutiny.4

Recently, the Roberts Court has struck down state regulations that limit speech related to campaigns for political office5 and contentbased speech bans.6 In Williams-Yulee, however, the Roberts Court broke new ground and upheld a state's content-based restriction on campaign speech, something it has not previously done. The case was also unique in that it was an unusual instance of the Court upholding a law when applying the strict scrutiny test in a free speech case:7 the Court found that the law furthered the compelling interest of maintaining the public's confidence in an impartial judiciary and was narrowly tailored to allow judicial candidates to continue engaging in a great deal of campaign-related speech.8 In the words of the Chief Justice, "judges are not politicians";9 thus, the rule restricting judicial candidates' speech was constitutional because judges are subject to more restrictions on their expressions than candidates for legislative or executive offices.10 It remains to be seen if these features of Williams Yulee are anomalies specific to campaign speech for judicial candidates or the beginning of new trends on the Court that have broader First Amendment implications.

This article critically analyzes the Court opinions in WilliamsYulee, ultimately concluding that the majority not only identified the correct constitutional test but also applied the test properly to the facts before it. Notably, the majority's opinion emphasized the need to regulate campaign speech in judicial elections differently from other elections because judges have an institutional role that is dissimilar from other public office candidates.11 This analysis was largely missing from the majority's reasoning in Republican Party of Minnesota v. White, thereby completing the circle left open by that case.12 The majority's analysis and approach differed in various ways from Justice Ginsburg's concurrence and the dissents of Justices Antonin Scalia, Anthony Kennedy, and Samuel Alito, which will be explored below. This article concludes by applying the majority's standard to other American Bar Association ("ABA") judicial ethics canons and explores the constitutionality of those canons in the context of state judicial elections, where campaigning can pose a threat to judicial independence. In this sense, Williams-Yulee seeks a balance between defending the free speech rights of judicial candidates and ensuring that judicial integrity and decisional independence continue to protect the due process rights of parties appearing before judges.

II.Background on Williams-Yulee

The Williams-Yulee case began when Lanell Williams-Yulee ("Yulee"), a Florida attorney, ran for a county court judgeship in 2009.13 After entering the race, Yulee sent a letter to area voters that described her experience and ideas.14 The letter, which Yulee also posted on her campaign website, additionally 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. …

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