What does a man in a robe know about tailoring?

Photographer: Win McNamee/Getty Images

Roberts Plays Politics by Denying Judges Are Political

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Chief Justice John Roberts isn't a politician -- and he wants you to know it. That's the message of a surprising 5-4 decision issued Wednesday by the U.S. Supreme Court in which Roberts provided the deciding vote. The court held that Florida may prohibit judges running for office from directly soliciting money from contributors. Ordinarily, as in the Citizens United decision, campaign-finance cases in the Roberts court go 5-4 the other way, and the court strikes down legal restrictions as violating free-speech. The other eight justices all voted consistently with their usual views. Only Roberts flipped in the judicial elections case -- and therein hangs an important tale about Roberts himself and the legacy he hopes to produce.

The Florida Code of Judicial Conduct, enacted by the state’s Supreme Court, says that judges running for office can't personally solicit campaign contributions. The same provision says that they can establish campaign committees to act on their behalf.

When it comes to campaign finance, politics have explained most of the U.S. Supreme Court's jurisprudence. In general, the court's conservative majority, including Justice Anthony Kennedy, has been striking down campaign-finance laws as unconstitutionally limiting the right to speak freely. The court’s four liberals consistently vote to uphold such laws.

Judicial elections have sometimes functioned as a proxy for the far more important fight over the constitutionality of campaign-finance reform. In a 2002 decision, Republican Party of Minnesota v. White, the court in a 5-4 vote invalidated a provision of Minnesota's Code of Judicial Conduct that banned judges from announcing their views on “disputed legal or political issues.”

In the oral argument for the case decided Wednesday, Williams-Yulee v. Florida Bar, it seemed as though the judges would follow the lead of the 2002 precedent and strike down the ban on personal solicitation by judges, which would certainly be unconstitutional if applied to ordinary politicians. According to this theory of the court's motivation, which seemed right to me at the time, the justices might believe that judicial elections are a bad idea, but the conservative majority wouldn't exempt judges from the ordinary rules of free speech.

But that expectation didn't account for a distinctive feature of Roberts’s worldview and goals. Alone among the sitting justices, Roberts genuinely cares about the principle of judicial restraint. He doesn't want the Roberts court to go down as the most activist court in U.S. history. This belief, and it alone, can explain Roberts's opinion upholding the constitutionality of the individual insurance mandate in the first Affordable Care Act case. Roberts deviated from his conservative colleagues to avoid a headline saying that the court had struck down Obamacare. At the same time, he made a big public demonstration of the view that the court is outside politics -- or least that he is.

Roberts's decision to deviate again from his conservative colleagues in the case of judicial elections represents the identical principle. Indeed, this time Robert said it explicitly. The most important sentence of his opinion reads, “Judges are not politicians, even when they come to the bench by way of the ballot.”

According to Roberts, the reason Florida may ban its judges from direct personal solicitation is that judges are different from other candidates for office -- and the state has a compelling interest in avoiding the mere appearance of a violation of impartiality.

A glance at the details of the opinion reveals that Roberts is motivated by the desire to communicate that judges are different. Roberts's analysis applied what lawyers call “strict scrutiny.” This mechanism first asks whether the government has a compelling interest in achieving the goal of this regulation, and then considers whether the regulation in question is narrowly tailored to achieve that goal. If that sounds like a difficult test to meet, it is. In the free-speech context, the decision to apply strict scrutiny generally means the law will be struck down. As an old adage has it, the scrutiny is “strict in theory, fatal in fact.”

Roberts had difficulty overcoming both of the strict-scrutiny hurdles. In the other campaign-finance cases, the court has said that the state's only compelling interest in campaign-finance regulation is avoiding the appearance of quid pro quo corruption. The Florida regulation wouldn't have met that compelling interest standard. Roberts solved the problem by saying that the rule for judicial elections was different, because “the role of judges differs from the role of politicians.” Politicians are supposed to respond to their constituents; judges are not. The problem with his argument, of course, is that it ignores the very rationale of judicial elections, which are intended at a minimum to make elected judges responsive to an electoral majority.

Showing that the regulation was narrowly tailored was even more embarrassing for Roberts. The regulation allows solicitation through campaign committees, which donors and the public surely understand to be proxies for the judge. As Justice Samuel Alito notably said in dissent, “This rule is about as narrowly tailored as a burlap bag.”

Roberts found himself insisting that the law had to be “narrowly tailored” but not “perfectly tailored.” This kind of hairsplitting gives lawyers a bad name, not to mention tailors. It's as if Roberts said that the tailoring doesn't have to be true custom tailoring, it's enough if the law is made-to-measure. (Admit it, you know the difference.) Maybe constitutional lawyers will come to call this the “prêt-à-porter” tailoring standard. In essence, Roberts's position is, once again, that judges are different.

The ultimate irony of Wednesday's opinion is that it shows Roberts as a consummate politician, manipulating the constitutional doctrine to produce a result that will achieve his political goal of insisting that judges aren’t political. Let it serve as a reminder that Roberts probably wants to avoid striking down the Affordable Care Act this time. The question is whether he will again depart from his conservative colleagues when the stakes are so high.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net