What will the Five wreak this time?
The U.S. Supreme Court will hear arguments on Wednesday in
Williams-Yulee v. Florida Bar, a case that could extend the Court's
Citizen's United decision all the way into courtrooms around the country. The case is challenging Florida's Code of Judicial Conduct which prohibits judges and candidates for judgeships from personally soliciting campaign donations or from getting public endorsements from attorneys. They can establish campaign committees to do those things, but can't do them personally. This case could
overturn similar bans in 30 states.
[T]his issue is quite common in that there are hundreds of judicial elections each year. In 2011 and 2012 there were high court elections in 35 states that contested 75 open seats, along with an additional 243 intermediate appellate court races in 29 states. These races are becoming increasingly more expensive: During just those two years, state high court, appellate and lower court judicial candidates raised more than $110 million, according to the National Institute On Money In State Politics (state judicial candidates raised just $83 million total in the 1990s). Justice At Stake, a nonpartisan judicial election watchdog group, points out that 20 states have surpassed records for judicial election spending since 2000. Independent spending on judicial elections is also booming, with more than $24 million being spent in the 2011-12 cycle compared to just $2.7 million a decade earlier.
Given the track record SCOTUS has on campaign finance, this seems like a forgone conclusion—no more personal fundraising bans on judges. But maybe not, as Ian Milhiser
writes at Think Progress. The key potential swing vote here from the
Citizens United Five is Justice Anthony Kennedy, who has shown a "past willingness to hold judges to a higher standard than other elected officials." Except that
Kennedy is also "the court's most predictable defender of the idea that, in politics, money equals speech."
Equal justice under the law has always been a tenuous prospect, since not everyone has equal means to access the courts by hiring lawyers. After this case is decided, will equal justice include having to grease a judge's palm?