If 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. – Justice Sandra Day O’Connor (2002)
The case is Wolfson v. Concannon (9th Cir., May 9, 2014). The issue: whether several provisions in the Arizona Code of Judicial Conduct (Canon 4) restricting judicial candidate speech run afoul of First Amendment protections. Held: Yes, but only as to non-incumbent judicial candidates. The vote: 1-1-1. Judge Richard A. Paez wrote the main opinion, Judge Marsha S. Berzon wrote a concurring opinion, and Judge Richard Tallman dissented in part.
Anita Y. Woudenberg argued on behalf of the Appellant, Kimberly A. Demarchi argued on behalf of the Arizona Bar Association, and Charles A. Grube, Assistant Attorney General in the Arizona Attorney General’s Office, argued on behalf of the Appellees. The case, of course, revisits the Supreme Court’s 5-4 holding in Republican Party of Minnesota v. White (2002). (BTW: The White case was successfully argued by James Bopp, Jr., with whose firm Ms. Woudenberg is affiliated.)
→ Judge Paez began his opinion on a rhetorical high note: “A state sets itself on a collision course with the First Amendment when it chooses to popularly elect its judges but restricts a candidate’s campaign speech. The conflict arises from the fundamental tension between the ideal of apolitical judicial independence and the critical nature of unfettered speech in the electoral political process.”
→ By contrast, Judge Berzon opened by way of echoing a cautionary metaphor: “Sitting for judicial election while judging cases, Justice Otto Kaus famously quipped, is like “brushing your teeth in the bathroom and trying not to notice the crocodile in the bathtub.”
→ As for Judge Tallman, he was more direct: “I agree with the majority that strict scrutiny . . . is the appropriate standard. I agree that we should limit our decision to non-incumbent judicial candidates. And I agree that Rules 4.1(a)(5) (campaigning for others) and 4.1(a)(6) (personal solicitation) are unconstitutional as applied to those candidates. I concur in the majority opinion only on those points. I part company with my colleagues as to Rules 4.1(a)(2) (giving speeches on behalf of others), (3) (endorsing others), and (4) (soliciting money for others).”
Three judges, three opinions. Still, they all agreed that the rules prohibiting speechifying, endorsements, and fundraising “present the closest question.”
→ The 7th Circuit, by comparison, upheld a similar set of laws in Siefert v. Alexander (2010) and in Bauer v. Shepard (2010). Those cases employed a Pickering balancing test instead of strict scrutiny. And those cases, unlike Wolfson, involved campaign restrictions on elected sitting judges rather than on a non-incumbent candidate running for a judicial office. As to the appropriate standard of review, in his White concurrence, Justice Anthony Kennedy, who voted with majority, declared: “Whether the rationale of Pickering and Connick v. Myers (1983), could be extended to allow a general speech restriction on sitting judges — regardless of whether they are campaigning — in order to promote the efficient administration of justice, is not an issue raised here.”
→ Judge Berzon duly stressed the limited scope of the Court’s ruling: “In sum, the principles applicable to the constitutionality of political restrictions on sitting judges diverge dramatically from those we apply to today’s challenge to restrictions on a judicial candidate not now a judge. The standard of review may well differ. And the powerful interests supporting such restrictions differ, too. I need not address, as the issue is not before us, whether the particular restrictions we review today would be constitutional as applied to sitting judges.”
More on this case as things develop.
First Amendment Cases Awaiting Decision
The following First Amendment freedom of expression cases are awaiting a decision by the Supreme Court:
- McCullen v. Coakley (abortion clinic protest case): Argued January 15, 2014 (transcript here)
- Harris v. Quinn (ripeness question & Abood issue case): Argued January 21, 2014 (transcript here)
- Susan B. Anthony List v. Driehaus (standing & false political speech case): Argued April 22, 2014 (transcript here)
- Lane v. Franks (retaliation against public employee & qualified immunity case): Argued April 28, 2014 (transcript here)
First Amendment Cases Already Decided
The following First Amendment freedom of expression case was handed down by Supreme Court this Term:
- McCutcheon v. Federal Election Commission (campaign finance case): Decided April 2, 2014 (opinion here)
Related Cases, see also
- United States v. Apel (military base: statutory interpretation case): Decided February 26, 2014 (opinion here)
- Air Wisconsin v. Hoeper (statutory question re malice case): Decided January 27, 2014 (opinion here)
Forthcoming Event on McCutcheon Case
On Wednesday June 18th @ noon the Cato Institute will host a program entitled “McCutcheon v. FEC: Two Books on the Supreme Court’s Latest Campaign Finance Case.” The event will feature:
- Shaun McCutcheon, CEO, Coalmont Electrical Development Co., and author of Outsider Inside the Supreme Court: A Decisive First Amendment Battle;
- Ronald Collins, Harold S. Shefelman Scholar, University of Washington Law School, and Co-Author (with David Skover) of When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment; and
- Donald McGahn, Partner, Patton Boggs LLP, and Former Chairman, Federal Election Commission.
The discussion will be moderated by Ilya Shapiro, a Senior Fellow in Constitutional Studies, Cato Institute.
Here is a description of the program:
On April 2, the Supreme Court issued its latest blockbuster ruling on campaign finance, McCutcheon v. FEC, striking down the “aggregate” contribution limits on how much money any one person can contribute to election campaigns (leaving untouched the “base” limits on donations to individual candidates or party committees). Within days of the decision, while pundits and activists were still battling in the media, two e-books were published about the case. One was by Shaun McCutcheon himself, an Alabama engineer who has quickly gone from political neophyte to Supreme Court plaintiff, thus providing a rare first-person layman’s account of high-stakes litigation. The other was by two law professors specializing in First Amendment law, Ronald Collins and David Skover, who dissect the Court’s ruling and put it in the broader context of campaign finance regulation.
→ To register to attend this event, click the button below and then submit the form on the page that opens, or email firstname.lastname@example.org, fax (202) 371-0841, or call (202) 789-5229 by noon on Tuesday, June 17, 2014.
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