A Few Thoughts on Williams-Yulee, the Supreme Court Judicial Elections Case

Today was oral argument in the Williams-Yulee case, and Howard rounds up the press coverage. Here is the oral argument transcript. The case concerns the constitutionality of Florida’s ban on judicial candidates personally soliciting campaign contributions. I haven’t weighed in much on this case, mostly because I’ve been busy with other projects, including my campaign finance book project. But here are a few thoughts.

1. There’s been an interesting debate between Bob Bauer and the Brennan Center over whether this is a big case or a small case. I think the ruling one way or another on the solicitations questions itself is not going to make much of a difference, for reasons Adam Bonin gives. There’s just not that much at stake—we need far more major changes to judicial elections if we are going to deal with the problem of money flowing into them.

2. That said, I think there is a lot at stake in how the Court decides Williams-Yulee.  If the Court goes the way that Justice Ginsburg pushed at oral argument—to recognize that it is permissible to have different rules for judicial elections compared to normal elections—that would go a long way toward giving lower courts the ability to uphold a host of other judicial campaign laws which do matter and which can and have been subject to judicial challenge. On the other hand, if the Court follows the Chief Justice’s apparent view that once you choose to elect your judges, the full First Amendment protections for campaigning and political activities apply to judicial candidates, we could end up with strict scrutiny and lots of other, more important judicial campaign laws getting struck down.  I’d hate to think that this case could lead a court to strike down a judicial canon barring judicial candidates from promising how they would vote on particular issues or cases, for example.

3. From the transcript, it is hard to see how this law survives, given how full of holes the solicitation rules are.  It could happen, but it would take some major efforts on the part of Justice Kennedy (the likely median Justice in this case). Although the oral argument comments of Kennedy were not crystal clear on where he will come out, he seemed quite skeptical.  It is possible, though, to write a narrow opinion that avoids deciding major issues, or messing with the level of scrutiny.  That might be the best that supporters of judicial campaign limitations may hope for at this point, and a very narrow opinion might even avoid the potential 5-4 split in this case, as we saw in the last of these cases, Republican Party of Minn. v. White.


More on the Sarcasm Index and the Justice Scalia “Echo Effect”

Will Baude, writing over at SCOTUS, is skeptical of my methodology in my new draft, The Most Sarcastic Justice, determining that Justice Scalia has been viewed the most sarcastic Justice by far in at least the last 30 years. Writes Will:

[I]t seems to me that Hasen’s methodology reflects a serious circularity in observations of the tone of Supreme Court Justices. When observers call a Scalia opinion “sarcastic” (or “stinging” or “caustic” or “angry” or anything else), I am not always sure whether this assessment is derived from what is actually written down, or from what the observer expects the tone to be.

Hasen acknowledges this and refers to it as the “‘echo chamber’ effect,” which he says he “cannot eliminate.” It seems to me that one way to eliminate it would be to have a set of readers, preferably those unfamiliar with the personal reputations of any of the Justices, read a bunch of anonymized Supreme Court passages and then evaluate the tone of the passages. Maybe the result would still be the same — I wouldn’t be surprised — but it might also be much less dramatic.

Adam Liptak raised this echo chamber effect with me in his NYT Sidebar column.  I briefly address it in a footnote in the piece, but I’m thinking I will need to expand the discussion as I continue to work on the piece. Here’s Adam:

Another possible objection is that people repeat the conventional wisdom and reinforce stereotypes. Justice Scalia may be sarcastic in the way President Gerald R. Ford was said to have been clumsy and Vice President Dan Quayle dim.

In an interview, Professor Hasen said he had taken that possibility into account. “My control for that,” he said, “is that I live in the real world.”

I wanted to elaborate on this point a bit. Yes of course it would be better to have randomized people read these opinions and classify sarcasm when they see them. But that is not a feasible research strategy. So my check was this: I looked at many of the references in law journals to a Justice’s opinion being sarcastic or caustic, and the judgment usually seemed to me to be on the mark, as a regular user of the English language. It is really hard to argue with the idea that many, many of the quotes pointed to from Justice Scalia are nasty or ironic, and often aimed at his colleagues.  Here’s an excerpt from my piece which shows what I’m talking about (footnotes omitted):

Justice Scalia has called other Justices’ opinions or arguments which he has disagreed with “bizarre,” “[g]rotesque,” and “incoherent.”…Justice Scalia has remarked that “Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its Members.” In a civil rights case, he ended his dissent by stating that: “The irony is that these individuals—predominantly unknown, unaffluent, unorganized—suffer this injustice at the hands of a Court fond of thinking itself the champion of the politically impotent.” In a gender discrimination case, he wrote: “Today’s opinion is an inspiring demonstration of how thoroughly up-to-date and right-thinking we Justices are in matters pertaining to the sexes (or as the C would have it, the genders), and how sternly we disapprove the male chauvinist attitudes of our predecessors. The price to be paid for this display—a modest price, surely—is that most of the opinion is quite irrlevant to the case at hand.” In an abortion rights case he declared: “The emptiness of the ‘reasoned judgment’ that produced Roe is displayed in plain view by the fact that, after more than 19 years of effort by some of the brightest (and most determined) legal minds in the country, after more than 10 cases upholding abortion rights in this Court, and after dozens upon dozens of amicus briefs submitted in these and other cases, the best the Court can do to explain how it is that the word ‘liberty’ must be thought to include the right to destroy human fetuses is to rattle off a collection of adjectives that simply decorate a value judgment and conceal a political choice.” Finally, in a concurring opinion in a substantive due process case, Justice Scalia wrote: “Today’s opinion gives the lie to those cynics who claim that changes in thisCourt’s jurisprudence are attributable to changes in the Court’s membership. It proves that the changes are attributable to nothing but the passage of time (not much time, at that), plus application of the ancient maxim, ‘That was then, this is now.

So I’m pretty confident that what observers are calling sarcastic or caustic actually fit the bill.


Must Read Jim Dwyer NYT Piece on Lone Voter Fraud Prosecution in NYC

Somehow I missed this Jim Dwyer NYT piece last week:

John Kennedy O’Hara spent most of 2003 picking up garbage in city parks and cleaning public toilets as part of his sentence for illegal voting in Brooklyn. Also, he had to pay a fine and restitution amounting to $15,192. His supposed crime was that he registered to vote using the address of a girlfriend on 47th Street in Sunset Park, where he claimed to live part of the time. But he also maintained a residence 14 blocks away.

While this sounds like pretty serious punishment for virtually nothing — the state election laws are so remarkably elastic on matters of residency that a former head of the Brooklyn Democratic Party was actually living in Queens during his reign — we cannot be sure if Mr. O’Hara got more than his unfair share.

There are, after all, very few people to compare him with.

Practically no one.


“Scalia Lands at Top of Sarcasm Index of Justices. Shocking.”

Adam Liptak’s latest Sidebar column for the NYT takes up a new study of mine, just posted on SSRN, The Most Sarcastic Justice. Adam’s piece begins:

Justice Antonin Scalia has a sharp tongue and a cutting writing style. His signature mode is sarcasm.

It was on display last week when a lawyer made the mistake of saying that Justice Scalia was right — but only “in a literal sense.”

The justice pounced. “Oh, I see,” he said. “What sense are we talking here? Poetic?”

There was laughter in the courtroom, and the lawyer was knocked off his stride.

The moment was routine. And there is little question that Justice Scalia is the most sarcastic member of the Supreme Court.

But it is one thing to make that assertion. It is another to quantify it.

For that, you would need a Sarcasm Index.

Luckily, we live in an empirical age. Richard L. Hasen, a law professor and political scientist at the University of California, Irvine, has developed the necessary tools.

Justice Scalia registered 2.78 on Professor Hasen’s index, dwarfing the showings of every justice he has served with. Justice Samuel A. Alito Jr. came in a very distant second, at 0.43. Chief Justice John G. Roberts Jr. and Justice Sonia Sotomayor did not even register.

Here is a full graphic representation of the Sarcasm Index:


And here is the abstract for my piece:

Justice Scalia is the most sarcastic Justice on the Supreme Court. He has been for at least the last thirty years, and there is good reason to believe no other Justice in history has come close to his level of sarcasm. Now your first reaction to this claim, if you are a (sarcastic) Supreme Court aficionado, is probably: “Well, duh!” And your second reaction is likely: “Oh really? Well how can you prove that?”

In this short essay, I do three things. First, I present empirical evidence showing that Justice Scalia’s opinions are magnitudes of order more likely to be described in law journals as sarcastic compared to any other Justice’s opinions. The numbers are quite remarkable, and do not vary whether Justice Scalia is compared to liberal or other conservative Justices who have served with him on the Court since his 1986 confirmation. Second, I present some illustrative examples of Justice Scalia’s sarcasm from a list of 75 sarcastic opinions from 1986-2013. His ability (and willingness) to engage in nastiness, particularly directed at other Justices’ opinions, is unparalleled. Third, I opine that Justice Scalia’s sarcasm is a mixed blessing. On the one hand sarcasm makes his opinions punchy and interesting, clarifying where he stands in a case and why and gaining attention for his ideas. On the other hand, such heavy use of sarcasm can demean the Court, and it arguably demonstrates Justice Scalia’s lack of respect for the legal opinions of his colleagues. In the end, his sarcasm may be his most enduring legacy.

Mediaite is unimpressed.


“Honor King’s Legacy By Protecting Voting Rights”

Ari Berman:

The film Selma movingly chronicles Martin Luther King Jr.’s fight to win the Voting Rights Act (VRA). It ends with King speaking triumphantly on the steps of the Alabama capitol, after marching from Selma to Montgomery. Five months later, Congress passed the VRA, the most important civil-rights law of the twentieth century.

If only that story had a happy ending today. Selma has been released at a time when voting rights are facing the most sustained attack since 1965. The Supreme Court gutted the centerpiece of the VRA in Shelby County v. Holder in June 2013. That followed a period from 2011 to 2012 when 180 new voting restrictions were introduced in 41 states, and 22 states made it harder to vote.


“The Law of Democracy at a Crossroads: Reflecting on Fifty Years of Voting Rights and the Judicial Regulation of the Political Thicket”

I am looking forward to participating in this event at FSU (where I will be presenting my Purcell Principle paper):

Friday, March 27 – Saturday, March 28, 2015

     2015 marks the 50th Anniversary of the Voting Rights Act of 1965, presenting a perfect opportunity to reflect on the changes that have occurred since the Supreme Court entered the “political thicket” over five decades ago. Since the 1960s, the Court has changed the landscape and the regulation of our system of politics, and its decisions continue to significantly impact this area. In 2013, the Court decided two major election law cases. Shelby County v. Holderinvalidated section 4(b) of the Voting Rights Act and raised important questions about the future of a super statute that had eliminated much of the racial discrimination in our political system.Arizona v. Inter Tribal Council reaffirmed the broad scope of congressional authority over elections. Last term, the Court decided an important campaign finance case, McCutcheon v. FEC, which struck down aggregate contribution limits and opened the door for more campaign finance deregulation. This symposium will allow leading legal scholars and political scientists to gather at a critical juncture in election law to debate and shape the future of the field.

You can see the schedule of events here.



“Convenience Voting: the End of Election Day?”

Graeme Orr has posted this draft on SSRN (forthcoming, Alternative Law Journal).  Here is the abstract:

When and where we vote is a central element of the ritual of electoral democracy. In a trend across western democracies, there has been a significant shift towards ‘convenience’ voting. This article explores the history, rationale and law around postal and pre-poll voting (the dominant forms of convenience voting) and cautions against this trend deconstructing the communal experience of election day.


“Dueling Canons”

Anita Krishnakumar has posted this draft on SSRN.  Here is the abstract:

This Article offers the first targeted study of the Supreme Court’s use of the canons and other tools of statutory interpretation in a “dueling” manner — i.e., to support opposing outcomes in both the majority and dissenting opinions in the same case. Taking its inspiration from Karl Llewellyn’s celebrated list of canons and counter-canons, the Article seeks to examine how often and in what ways the members of the Roberts Court counter each other’s references to particular interpretive tools when disagreeing about the proper reading of a statute.

Many of the Article’s findings are unexpected and undermine the assumptions made by some of the most prominent theories of statutory interpretation. Textualists, for example, long have urged the rejection of interpretive tools such as legislative history, statutory purpose, and congressional intent on the ground that such tools are indeterminate and can be manipulated to support almost any statutory construction favored by the judge. Moreover, textualists have advocated the use of other interpretive tools — e.g., statutory text / the plain meaning rule, the whole act rule, language canons, other statutes — on the theory that these tools are neutral and will constrain judges to reach the correct or “best” reading of the statute. But the data from the Roberts Court’s dueling canon cases reveals that many of textualism’s most-favored interpretive tools are at least as susceptible to dueling use as the tools that textualists love to denigrate. The study shows, for example, that the justices duel extensively over the meaning of statutory text but duel at low, virtually identical, rates over legislative history, purpose, intent, dictionary references, the whole act rule and language canons.

The study also reveals some unsurprising data. For example, the canons do not seem capable of constraining the judges to vote against ideology. And non-canon tools of analysis, including precedent and practical consequences reasoning, lead to higher rates of dueling than do most traditional canons or tools of statutory interpretation. After reporting the data, this Article examines the theoretical implications of the justices’ relatively infrequent, though ideologically-slanted, dueling canon use.



Rep. Conyers on the VRA and VRAA

WaPo profile:

Conyers and House Democrats plan to spend this year drawing attention to ongoing concerns with voting rights after the Supreme Court invalidated parts of the Voting Rights Act in 2013. The court struck down sections of the law dealing with the special scrutiny imposed on states with a history of discrimination, compelling Congress to come up with a new formula based on current data to determine which states should be subject to the law.

House Judiciary Committee Chairman Bob Goodlatte (R-Va.) said last week that he sees no need to revamp the law — yet another sign of disagreement between Republicans and Democrats.

“We have not seen a process forward that is necessary to protect people because we think the Voting Rights Act is providing substantial protection in this area right now,” Goodlatte said at a breakfast hosted by the Christian Science Monitor.

Conyers is undeterred.

“The Supreme Court kind of threw us a curveball on that, but look, that’s happened before,” he said. The court’s decision makes voting rights “a new, big issue,” he said. But, he said, people should be mindful that things have been much worse.


“Arizona and Anti-Reform”

Nick Stephanopoulos has posted this draft on SSRN (forthcoming, University of Chicago Legal Forum).  Here is the abstract:

The Supreme Court is on the cusp of rejecting one of the best ideas for reforming American elections: independent commissions for congressional redistricting. According to the plaintiffs in a pending case, a commission is not “the Legislature” of a state. And under the Elections Clause, it is only “the Legislature” that may set congressional district boundaries.

There are good reasons, grounded in text and precedent, for the Court to rebuff this challenge. And these reasons are being aired effectively in the case’s briefing. In this symposium contribution, then, I develop three other kinds of arguments for redistricting commissions. Together, they illuminate the high theoretical, empirical, and policy stakes of this debate.

First, commissions are supported by the political process theory that underlies many Court decisions. Process theory contends that judicial intervention is most justified when the political process has broken down in some way. Gerrymandering, of course, is a quintessential case of democratic breakdown. The Court itself thus could (and should) begin policing gerrymanders. And the Court should welcome the transfer of redistricting authority from the elected branches to commissions. Then the risk of breakdown declines without the Court even needing to enter this particular thicket.

Second, commission usage leads to demonstrable improvements in key democratic values. The existing literature links commissions to greater partisan fairness, higher competitiveness, and better representation. And in a rigorous new study, spanning federal and state elections over the last forty years, I find that commissions, courts, and divided governments all increase partisan fairness relative to unified governments. At the federal level, in particular, commissions increase partisan fairness by up to fifty percent.

And third, the implications of the plaintiffs’ position are more sweeping than even they may realize. If only “the Legislature” may draw congressional district lines, then governors should not be able to veto plans, nor should state courts be able to assess their legality. And beyond redistricting, intrusions into any other aspect of federal elections by governors, courts, agencies, or voters should be invalid as well. In short, a victory for the plaintiffs could amount to an unnecessary election law revolution.


“Taking Up Gay Marriage, but on Their Own Terms”

Adam Liptak for the NYT:

WASHINGTON — The first page of a petition seeking Supreme Court review is the most important. It sets out the “question presented,” the one the court will answer if it takes the case.

The justices do not ordinarily tinker with the wording of those questions. But on Friday something unusual happened: In agreeing to hear four same-sex marriage cases, the court framed for itself the issues it would address.

Lawyers and scholars scrutinized the court’s order with the anxious intensity of hypochondriacs attending their symptoms. Some saw an attempt by Chief Justice John G. Roberts Jr. to elicit a ruling that would stop short of establishing a nationwide constitutional right to same-sex marriage.



“Jeb Bush’s Decision To ‘Actively Explore’ 2016 Run Allows Him To Avoid Super PAC Rules”

Paul Blumental for HuffPo:

When former Florida Gov. Jeb Bush (R) waded into the 2016 presidential race in December, he did so with some awkward wording. He stated that he would “actively explore the possibility of running for President of the United States.”

This hedged language on the part of a politician whose father and brother have each served in the White House could represent some hesitation on Bush’s part as to whether he wants to run. But, it’s also convenient phrasing to provide Bush with a legal loophole permitting him to avoid numerous campaign finance regulations and to raise money and coordinate with his very own personal super PAC — at least until he officially declares he is done exploring possibilities and commits to a run.


Has #SCOTUS Stacked the Deck Against Gay Marriage in How It Has Framed the Question?

The Supreme Court’s decision to hear the gay marriage cases today came accompanied by some strange rephrasing of the questions presented:

The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? A total of ninety minutes is allotted for oral argument on Question 1. A total of one hour is allotted for oral argument on Question 2. The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions.

The first question presented is quite odd. Rather than ask about an equal right of gays and lesbians to marry same sex partners, it asks about the right of the states to deny same sex marriage licenses. This not only phrases it as an equal protection type claim, but of course leaves open the possibility that states could get out of the marriage business entirely. This perhaps takes away issues related to the due process rights of same sex couples, and perhaps keeps the court from getting into questions about heightened scrutiny for sexual orientation discrimination.

The framing of these questions apparently differ from the way the questions were presented in all of the petitions, which raises the question of why were they rewritten (with an accompanying direct order—I’ve not seen that before—admonishing the parties to stick with discussing these questions presented). This strikes me as the handiwork of the Chief Justice, perhaps looking for a way to have as narrow a win for same sex couples as it is possible to achieve. That is, if the Chief calculates that Kennedy and the liberals are going to reverse the Sixth Circuit no matter what, perhaps this is a way to have that majority write as narrow an opinion as possible, one that even the Chief could possibly join (hedging a bet against historical trends?).

This is of course speculation. Perhaps Justice Kennedy wanted the question framed in this odd way (though his earlier gay rights opinions do not suggest he would be averse to deciding the issue as to the rights of gay couples (and derivatively their children). But the delay in issuing today’s order, the deliberate reframing of the question, and the admonition to the parties to stick with the issues means something was afoot.

UPDATE: I’ve heard from a few people that the admonition related more to the fact that some of the petitions presented only one of these two issues, and the parties should each address only the one they’ve gone up on. That seems plausible.


[This post has been updated.]


“Florida’s Ban on Direct Solicitation Has Significant Implications for Due Process”

Kate Berry for the Brennan Center:

In “A Minor Measure with Major Benefits before the Supreme Court?,” attorney Bob Bauerquestions whether Florida’s rule prohibiting judicial candidates from personally soliciting campaign contributions can both be minor in scope and yield significant benefits. Bauer’s skepticism elides the fact that two distinct rights are at stake –– Florida’s rule imposes only a minor restriction on First Amendment speech, but it provides crucial due process protections.


“California State Appeals Court Hearing Goes Badly for Minor Parties”

Ballot Access News:

On January 15, the California State Appeals Court based in San Francisco heard oral arguments in Rubin v Bowen, the case in which minor parties sued to overturn the top-two primary system on the grounds that the system disenfranchises voters in the general election who wish to vote for minor party candidates.

The hearing began badly when the first question asked by any of the three judges was to the attorney for the minor parties. The judge asked whether or not, before Proposition 14, any voters were barred from participating in the primaries. Then she amended her question to ask specifically if independent voters were barred from voting in partisan primaries. The correct answer is “No”, because between 2001 and the beginning of the top-two system in 2011, independent voters were permitted to vote in all Democratic and Republican primaries for congress and partisan state office.

Unfortunately, the attorney for the minor parties did not know this, and he answered the question by saying that before Proposition 14, independent voters were not permitted to vote in Democratic and Republican primaries. The judge then interjected that 20% of the voters were independents, which is true. Clearly this judge believed that Proposition 14 enhanced voting rights for independents in the primary, and nothing was said in the hearing to illustrate the truth.

The minor parties have stressed that ending all minor party campaigns in June, five long months from the general election, curtails their campaigns. The Washington state top-two system has been upheld by the Ninth Circuit, but the Washington state primary is in late August, and the California minor party briefs stressed that there is a significant difference between early June and late August, and that they at least should be given a hearing to present facts about the concrete differences between Washington and California. California requires all candidates for Congress and partisan state office to file in March. But the attorney for the intervenors told the judges that even March petition deadlines for general election ballot access are constitutional, and he cited the only published decision that upholds a March petition deadline for independent candidates or minor parties, Lawrence v Blackwell, a 6th circuit case from Ohio. No attorney told the court that Lawrence v Blackwell is an outlier, and petition deadlines as early as March have been struck down in Alaska, Arizona, Arkansas, Idaho, Kansas, Maine, Maryland, Massachusetts, Missouri, Montana, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Pennsylvania, and Tennessee.

The attorney for the state told the panel that the fact that few minor party or independents qualify for the November ballot is immaterial. In 1986, the U.S. Supreme Court upheld Washington state’s old system, a blanket primary in which all candidates ran in the September primary, and candidates who failed to get 1% of the vote could not run in November. This case was Munro v Socialist Workers Party, 479 US 189. The attorney for the state said that in the Munro case, the law was constitutional even though only one minor party candidate had managed to qualify for the November ballot. Actually footnote 11 of the decision says that there were 45 minor party and independent candidates during the years the 1% rule was in effect, and 40 of them passed the 1% vote test.

The judges were told by the attorney for the intervenors that the top-two system is “exactly the same as California non-partisan elections” that require runoffs. This is not true. In California non-partisan elections that require run-offs if no one gets 50%, the first round is an election because candidates can be, and usually are, elected in the first round. By contrast, under California’s top-two system, no one can be elected in June. Thus November is the election itself, not a “run-off.” Unfortunately, one of the judges said that the November election is a “run-off” and no voice was raised to dispute that point.

A decision is expected in the next sixty days.