Baltimore hasn't changed all that much in four decades...
- In another blow against logic and "the State’s compelling interest in preserving public confidence in the integrity of the judiciary," slip op. at 8, the Supreme Court yesterday managed — through a startling bit of circular logic — to avoid ever confronting the issue actually before it. Here's the sole discussion of that actual issue:
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.
Williams-Yulee v. Florida Bar, No. 13–1499 (29 Apr 2015), slip op. at 1 (PDF) (citations — or absence thereof — exactly as in original). The underlying dispute (whether a lawyer may be prohibited from soliciting judicial campaign contributions in her own name) is fundamentally over whether the angels dancing on the head of a pin may do the Can-Can, because the Court assumes a priori that both:
- The individual states have the authority to elect judges and still maintain a "republican form of government," U.S. Const. Art. IV § 4. This issue has been evaded every time it has appeared before the Court, and is at least on its face inconsistent with the only "republican form of government" known at the time Article IV was drafted: The one being established, with an appointed-and-tenured judiciary that never stood for election. There might be a defensible, or even persuasive, rationale for the Court's position; passive-aggressive evasion, however, is not it.
- The compelling interest in the integrity of the judiciary is constitutionally served by an underinclusive rule/means directed to a particular subset of purportedly suspect behavior in an inherently suspect context that, as noted above, has not been itself resolved. The Court has repeatedly interfered with state election procedures that harm other "compelling interests" by examining the nature of the compelling interest in considerable detail — unlike this matter.
I do not accept that judicial elections are consistent with the republican-form-of-government mandate or with the compelling interest in public confidence in the integrity of the judiciary... or at least I'm not willing to accept either without more than a single-sentence assertion with no apparent authority. (Admittedly, that sentence appears in the introduction; however, the issue is nowhere revisited in any of the five opinions issued in this matter.) If you really want a data point or three, consider Illinois judicial elections during the time I lived there — not just the nasty Illinois State Supreme Court campaign and fallout concerning Justice Karmeier, but the intermediate appellate courts, too, with campaign slogans for judges proclaiming that "he'll be tough on crime" (and that judge is still on the bench, still deciding criminal appeals in a part of the state with a long and ugly history of racial disparity in law enforcement). I have no particular evidence that either Justice Karmeier or that unnamed appellate judge in the Fourth District is, in fact, "beholden" to other interests. Justice must be seen to be done as well, though, and the particular variety of "underinclusiveness" that is blithely dismissed by Chief Justice Roberts' opinion, slip op. at 12–16, using authority drawn from partisan matters, rather thoroughly undermines that compelling interest.
Perhaps this is an instance in which institutional-authority considerations are perceived as making criticism of the states' neoanarchic/cryptolibertarian insanity by the Court politically unacceptable. That doesn't make the reasoning actually put forth by the Court any better — and recalls the shameful abrogation of duty by elected state judiciaries in Loving, in Marsh, in Gobitis/Barnette, in more voting rights cases (including a number in Florida) than I can conveniently list. Then there's the Maricopa County Sherriff. It's called "Balkanization," guys; and it's as internally inconsistent with a federal system as is allowing a religiously motivated bit of discrimination in one state to restrict the citizens of another state. Besides, all you have to do is admit that an icon of the Reagan Revolution is right; after all, retired Justice O'Connor has actually been an elected state-court judge, unlike any of the rest of you.
Failure to act leads to crises of legitimacy at least as much as does inept or overreaching action. That's the real lesson of Brown — the preceding century of Dred Scott and refusal to abrogate it. It's the continuing lesson of Korematsu and Hirabayashi. And the common thread of all of these is that they deny the very existence of the countermajoritarian difficulty (PDF) in the name of making things, well, easy, which leads in the end only to a tyranny of the minority and the kind of neofeodality that the Founders were attempting to escape (well, at least until one looks at their actual behavior in places like Providence Plantation).
- Speaking of Balkanization, consider the problem of copyright terms, even in the purportedly uniform EU. The contrast with the difficulty in actually getting Spanish publishers to pay royalties they owe is... disturbing.
... and Wolf Blitzer, with his claim that he's never seen anything like the recent not-quite-insurrection in Baltimore, has an awfully damned short memory. Leaving aside Ferguson for the moment, consider this. And ponder the elected state-court-judge context.