Judges Who Broadcast Their Imprudent and Injudicious Behavior

Ronald D. Rotunda Aug 8, 2015
Judge WritingType “judges behaving badly” into Google, and you will get over 400,000 hits. There is one story after another about judges acting injudiciously, sometimes criminally. For example, the state of Oklahoma convicted one state judge of exposing himself while presiding over jury trials. He used a penis pump under his robes. His former court reporter testified that she saw him expose himself at least 15 times during a two-year period. In a murder case, the jurors asked the judge about the whooshing sound under his desk. He said he had not heard it. He later said that a fishing buddy gave him the pump as a joke. “It wasn’t something I was hiding.”
When state judges act injudiciously, state judicial discipline is available. The state remedies include the state publicly reprimanding the judge, or suspending him or her without pay for a period, and even removing him or her from the bench. In addition, in many states, the people vote for their judges, so that periodic elections can remove embarrassments.
No so for federal judges. Their lifetime tenure and salary protection make them immune from effective discipline, although Congress can impeach for serious offenses—a rarely used remedy, unless the federal government convicts the judge of a felony. Even then, the judge remains a judge and collects his salary, while serving time in prison, until the House impeaches, and the Senate removes the federal judge.
The framers of our Constitution gave federal judges lifetime tenure and salary protection to to make judges independent, not to authorize them to act with gay abandon. Some judges do not understand that, when they ascend to the bench, they are supposed to leave their politics behind.
Let us consider District Judge Richard Kopf of the District of Nebraska. He wrote a blog he calls, Hercules and the Umpire. In Burwell v. Hobby Lobby Stores, Inc. (2014), the Supreme Court held that a regulation of Health and Human Services could not force Hobby Lobby to pay for abortifacients to give to its employees. Congress could pay for the abortifacients if it chose to do so. There would be no constitutional problem with that. Indeed, Congress could distribute free abortifacients on vending machines each street corner, but Congress (actually, in this case, the Secretary of HHS) could not force one private party to pay for another’s abortion. That violated a federal statute directly on point. The decision protected the religious liberties of the employer.
Judge Kopf published his analysis of this decision in is blog. It was pithy: “As the kids say, it is time for the Court to stfu.” Where he prints “stfu,” he added a hyperlink to the Urban Dictionary, helpfully explaining to the reader what “stfu” means. All in all, for that one posting, one sees the term “stfu” 64 times. Kopf says that the majority decided as they did because they are Catholics. Kopf, by the way, compares his own legal analysis to that of the late Professor Alexander Bickel of Yale, whose writing is more eloquent.
Judge Kopf’s blog gave him 15 minutes of fame in the popular press, with an article in the Huffington Post and a few other places about his language. Not content with just 15 minutes, he later decided to attack Senator Cruz. On July 6, 2015, Judge Kopf told us, “Senator Ted Cruz is not fit to be President.” I hold no brief for Senator Cruz; I do wonder, however, why federal judges (who are supposed to leave their politics behind when they assume the bench) would signify their disapproval, rebuke, or endorsement of any presidential candidate.
If Judge Kopf wondered whether it was ethically proper to give his official seal of approval or disapproval to a presidential candidate, he was not cast adrift with no navigational aids. The Administrative Office of the U.S. Courts publishes is Code of Conduct for U.S. Judges. The very first sentence provides, “Federal judges must abide by the Code of Conduct for United States Judges, a set of ethical principles and guidelines adopted by the Judicial Conference of the United States.”
The title of Canon 5 provides, in bold letters no less, “A Judge Should Refrain from Political Activity.” Canon 5A(2) states and a judge should not “make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office.” [Emphasis added] That sentence is not difficult to understand. The Administrative Conference also provides ethics opinions to explain further what is not permitted. The Committee on Codes of Conduct Advisory Opinion No. 19 (June 2009) explains that Canon 5A(2) is so strict that the judge should resign membership in a political club advocating and maintaining the principles of any political party even though the judge does not actively participate in the club.
In case one wonders what about Senator Cruz so irked Judge Kopf to proclaim his public opposition to Cruz’s candidacy, Kopf—who concedes that he should not be handing out such pronouncements—tells us in no uncertain terms:
As a federal judge, I am duty bound not to play politics. However, when a politician makes an extreme proposal [emphasis added] to amend the Constitution and fundamentally alter and harm the federal judiciary and the Supreme Court, I have the right as a federal judge, and dare I say the duty, to respond to the proposal. Senator, and Presidential candidate, Ted Cruz has recently stated,
I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic judicial-retention elections. Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the Court.
Because Cruz “is serious” about this “extreme proposal,” Cruz “is demonstrably unfit to become President.” Judge Kopf actually claims that he “did not label Senator Cruz unfit to serve in order to oppose his candidacy”; Kopf could have fooled me. I thought that if you say that Cruz is not fit to become President that means that you oppose his election to that office. No, says Judge Kopf, who claims he made his statement “rather to demolish [sic] and protect us all from his intemperate legal attacks on the Supreme Court.”
Whether one thinks that the idea of having term limits for judges is a bad idea or a good one, a proposal for a constitutional amendment is hardly an intemperate attack or an extreme proposal. In 2009, Professor Paul Carrington of Duke University urged Congress to consider term limits for Supreme Court justices. Last October, Dean Erwin Chemerinsky of the University of California Irvine, said, “I do believe there should be term limits for Supreme Court justices.” He presents his arguments in his article, Ted Cruz Is Right: The Supreme Court Needs Term Limits. Was that yet another extreme proposal or an intemperate attack on the Supreme Court? Chemerinsky argues that judicial elections are not the answer. Instead, he proposes that each justice should be appointed for an 18-year, non-renewable term, thus creating a vacancy every two years. He develops this idea in one of his recent books. Linda Greenhouse has also proposed 18-year terms.
Polls show that a large majority of Americans, without regard to party, support some sort of term limits for U.S. Supreme Court Justices. Last June, the Supreme Court ruled held that there is a constitutional right to same-sex marriage nationwide (a result that drew popular support) and that it would reject another challenge to President Barack Obama’s healthcare law (which does not enjoy such widespread support). A month after those two cases, a Reuters/Ipsos poll showed that the people, in general favor term limits for Justices: 66 percent of Democrats, 74 percent of Republicans and 68 percent of independents all favored the 10-year term limit for Justices. Are two-thirds of Democrats “intemperate” because they want limits on Supreme Court Justices that are stricter that what Cruz proposed?
Judge Kopf no longer updates his blog. He shut it down on July 9, 2015 (“I am today pulling the plug”), three days after he told us that Cruz is unfit to be President. His pages are still available on the web, but he no longer updates. Why? He says that it is not because of any judicial discipline, and anyway, any discipline complaint “would not discourage me from blogging,” he adds. In addition, “I am not pulling the plug because of any mental or emotional struggles or treatment.”
Instead, “I am pulling the plug because I learned a couple of hours ago about a discussion held at a retreat for our employees.” What did he learn? The Chief Judge asked, “how many of the employees felt the blog had become an embarrassment to our Court. The great majority raised their hands.” (Emphasis added.)
That is why he is pulling the plug. He is an embarrassment to the federal courts.

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Higher Education and Teaching English

Ronald D. Rotunda Aug 8, 2015
Censored Speech When colleges are teaching English these days, they are not talking about the novels of Faulkner or the drama of Shakespeare. Instead, they are instructing the professors and students to avoid “microaggressions” and to give “trigger warnings.” Professors routinely defend tenure as a means of protecting academic freedom. Universities, after all, are supposed to be thriving centers of free speech. The problem is the many universities instead are striving to teach their students and faculty that the last thing they should do is express a contrary view.
The politically correct term is “microaggression”—a new word that the Oxford English Dictionary has not yet added but may do so (unless adding that word is itself a microaggression). The word has been around for decades, first coined in 1970, but only recently has it become a buzzword. It refers to verbal, behavioral, or environmental indignities, even unintentional, that someone might perceive as a slight. Plug it into Google and you will get about 214,000 hits. Plug in “micro aggression” and you are over 700,000 hits.
What are some microaggressions? The University of Wisconsin–Stevens Point has helpfully included a list to guide its students and professors about what not to say. For example, let us say a professor tells a student in a class on rhetoric, “You are so articulate.” That’s a microaggression. Yes it is. You may be able to get away with telling the white student in the rhetoric class that she has performed well and is articulate, but you are looking for trouble if you say that to a nonwhite student, the University of Wisconsin solemnly informs us. What if an Asian student says to the teacher, “You only call the white students articulate?” “Why don’t you ever praise an Asian?” Well, the Administration at the University of Wisconsin never gets around to answering that one.
How about this? You’re in a history class, or a civics class, and you hear a student or teacher says, “America is a melting pot.” That is another no-no. It really means that people in this country assimilate, and that is apparently very bad. What if you pull out a dollar bill and read part of the Great Seal of the United States, “E pluribus unum”? That means, “Out of many, one.” That sounds a lot like “America is a melting pot.” Yet, Wisconsin does not list that one as a microaggression. Perhaps those who make up the list don’t understand Latin.
Suppose someone says, “I think my friend will get the job because his father is a friend of the employer.” Another person responds, “I believe the most qualified person should get the job.” That is yet another no-no, according to the University of Wisconsin–Stevens Point.
An example of an environmental microaggression occurs if a college or university has buildings named “after White heterosexual upper class males.” That one is really a hoot. First, one should not be surprised that college buildings are names after donors. If we have heard of the donor, we may know that the donor is male and rich. We usually don’t know their sexual orientation; perhaps because they think what they do in the bedroom is not anyone else’s business. In any event, it is still a bit surprising for the University of Wisconsin to object to buildings named after donors—all it has to do is refuse the money or return it and change the name of the building.
Wisconsin also objects to an “[o]verabundance of liquor stores in communities of color.” It does not tell us what “overabundance” means, but we do know that it offers no objection to an overabundance of liquor stores in communities with a large college population.
The University of California—the home of the free speech movement—not to be outdone, has now published its own list of microaggressions. Some parrot the Wisconsin list. Others do not. For example, California thinks it is a microaggression “Being forced to choose Male or Female when completing basic forms.” The University’s graduates will have trouble filling out census forms. California, however, does seem to understand that it should not insult its donors. Although it recognizes that microaggressions include “environmental slights, snubs,” it lists none. Apparently, California will not be returning any donors’ money or changing the names of its buildings.
The University of California assures us that it will embark on “an intensive training program on the topic for its faculty and administrators.” One wonders whether colleges should instead use their limited resources to focus on other issues, such as making sure that their expensive college degrees are worth something on the job market.
“Trigger warning” is another buzz word. Type that into Google and you get nearly a half-million hits. We are told that you should warn people if you are going to discuss an eating disorder. Like microaggression, “trigger warning” is an invitation to squelch debate and free speech. When we go through life, we will often run into discussions that describe things we do not like. If this is a private conversation, we can tell the other person to stop and polite people will do so. However, if someone is giving a speech or talking to a group, we have to realize that the Supreme Court has often said that free speech should be robust and that we protect speech that is meant to upset the hearer.
The American Association of University Professors’ Committee on Academic Freedom recently approved a report that warns about “trigger warnings.” As it explains:
A current threat to academic freedom in the classroom comes from a demand that teachers provide warnings in advance if assigned material contains anything that might trigger difficult emotional responses for students.
Many examples abound where universities enact or propose to enact rules that seek to shield people from life. Oberlin College announced a policy (now tabled) that told its faculty to “[r]emove triggering material when it does not contribute directly to the course learning goals.”
Consider the novel “Things Fall Apart,” by Chinua Achebe. This 1958 book is widely described “as the archetypal modern African novel in English, one of the first to receive global critical acclaim. It is a staple book in schools throughout Africa and is widely read and studied in English-speaking countries around the world.” Oberlin, however, advised that this novel might “trigger readers who have experienced racism, colonialism, religious persecution, violence, suicide and more.” That’s right—students in schools throughout Africa reach this novel, but Oberlin is concerned that it should come with a warning label because students in the United States may have experienced “colonialism.” Yet the students living in Africa, a continent that the West colonized for many decades, do not need this trigger warning.
Wellesley College students objected to “a sculpture of a man in his underwear because it might be a source of ‘triggering thoughts regarding sexual assault.’” The sculptor wanted to show a man sleepwalking. The students insisted that Wellesley move it indoors. Apparently these students do not understand that rapes occur indoors as well as outside.
The AAUP warned that even voluntary use of trigger warnings harms academic learning and the obligation of higher education should challenge students.
If, for example, The House of Mirth or Anna Karenina carried a warning about suicide, students might overlook the other questions about wealth, love, deception, and existential anxiety that are what those books are actually about. Trigger warnings thus run the risk of reducing complex literary, historical, sociological and political insights to a few negative characterizations. By calling attention to certain content in a given work, trigger warnings also signal an expected response to the content (e.g., dismay, distress, disapproval), and eliminate the element of surprise and spontaneity that can enrich the reading experience and provide critical insight.
In other words, the goal of education is to expose students to new ideas, so some distress is inevitable.
Eugene Volokh, a distinguished law professor at UCLA who teaches free speech law, offers a useful warning. “[M]any faculty members who aren’t yet tenured, many adjuncts and lecturers who aren’t on the tenure ladder, many staff members, and likely even many students—and perhaps even quite a few tenured faculty members as well—will get the message that certain viewpoints are best not expressed when you’re working for UC, whether in the classroom, in casual discussions, in scholarship, in op-eds, on blogs, or elsewhere.”
Of course, we should all strive to be polite and we should all try to get along. There is no need to antagonize people. If people tell racist or sexist jokes, we do not have to laugh with them or invite them to our homes for dinner. Yet, that is different from trying to impose behavior by rules. These universities do not say that they will deny tenure to a professor who violates these “rules” or “guidelines.” We will have to wait until someone who does not receive tenure files suit. The litigant may claim (rightly or wrongly) that the university was really punishing him or her because they did not follow the guidelines. The University says that untenured faculty are “expected to feel uncensored, and free to express their ideas, including ones UC has labeled racist, aggressive, and hostile.” Professor Volokh’s reaction, “Really?”
Ronald D. Rotunda is The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University, The Dale E. Fowler School of Law. He is coauthor of six-volume Treatise on Constitutional Law: Substance and Procedure (5th ed., Thomson-West, St. Paul, Minn. 2012-2013), and Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility (ABA Thomson-West & ABA, 11th ed. 2013), a one-volume treatise on Legal Ethics.

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Abandoned Symbols: Confederate Flags and Criminal Justiceby Joseph Margulies

ORIGINAL ARTICLE
Old Confederate FlagIn the wake of the horrific massacre in Charleston, leading social conservatives across the country have loudly called for the removal of the Confederate battle flag from public display. But some people have wondered whether their call, however welcome, will prove nothing more than an empty gesture, a cynical strategy to woo moderate whites to the conservative camp in the 2016 election.
As is my wont, I am more hopeful. In ways that have not been adequately appreciated, the elite repudiation of the flag in the wake of Dylan Roof’s murderous rampage could be an important step, not simply in the debate over slave-era symbolism but in the contemporary struggle for criminal justice.
***
Why do we care about symbols? They don’t put food on the table, money in your pocket, or a roof over your head. You can’t eat a symbol. But they are nonetheless as important to our lives as anything we can buy.
Symbols play two equally important roles in American life. In the most obvious sense, they represent a belief system. The Constitution, for instance, symbolizes our belief in and commitment to the rule of law. Yet symbols also signal our membership in a particular community. For many years, Christians have used the ixthus to signal their faith to fellow believers, and many conservative Christians now display the symbol in their home or business or affix it their cars.
This dual role makes symbols vital to both our personal and communal identity; they declare what we believe as individuals and confirm our place in a tribe of like-minded others. We could never survive without symbols, and if suddenly they were taken from us, we would surely create others to take their place.
Yet symbols are deliberately vague and ambiguous. That’s part of what makes them so valuable. It is important that the Constitution, as a symbol, not be given a single, inflexible meaning, since that would prevent it from accommodating the shifting demands of the day. Equality, for instance, means something very different today from what it meant during the heyday of Jim Crow. In fact, historians have shown that its meaning today bears only a distant “family resemblance” to its meaning at the time of the Founding.
What is true for equality is no less true for many of the other terms and expressions in the Constitution, as recent historic events in the Supreme Court have made abundantly clear. What we mean by liberty, wrote the historian Michael Kammen, has “changed and broadened over time, . . . ranging from constraints upon authority to improvements in the conditions of social justice, of privacy, and a growing concern for the protection of personal liberty.”
This process is not only natural but inevitable, despite what Justice Scalia might think. As Justice Felix Frankfurter once observed, “Great concepts like . . . ‘due process of law,’ ‘liberty,’ [and] ‘property’ were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.”
The meaning of symbols is thus perennially a work in progress, continually renegotiated in the many spaces occupied by both the individual and the community—the private space, where the individual reflects on her own beliefs; the communal space, where the community speaks with its own members; and the public space, where the community speaks with the wider world.
In this never-ending negotiation, we have long understood the prominent role played by the community’s elites. These are the politicians, religious leaders, and other public figures that are widely believed by the community itself to be the keepers of the flame, the men and women who best represent the ideas and ideals of the belief system.
And that brings us at last to the Confederate Flag. In the days since the massacre in Charleston, elite social conservatives have consciously redefined the flag in both its individual and communal sense. Consider this statement from South Carolina State Senator Paul Thurmond, the son of arch-segregationist Strom Thurmond:
I think the time is right and the ground is fertile for us to make progress as a state and to come together and remove the Confederate battle flag from prominent statue outside the Statehouse and put it in the museum. It is time to acknowledge our past, atone for our sins and work towards a better future. That future must be built on symbols of peace, love, and unity. That future cannot be built on symbols of war, hate, and divisiveness.
. . .
Now we have these hate groups and the symbols that they use to remind African Americans that things haven’t changed and that they are still viewed as less than equal human beings. Well, let me tell you: Things have changed. Overwhelmingly, people are not being raised to hate or to believe that they are superior to others based on the color of their skin. My generation was raised to respect all people, of every race, religion, and gender.
At the individual level, Thurmond declares that the Confederate flag cannot be a legitimate representation of the southern, socially conservative belief system. A true southern conservative, he admonishes, does not believe in these things.
But the communal redefinition is even more important. Pronouncing that “things have changed,” Thurmond emphasizes the need “to come together” as a state and build a future around “symbols of . . . unity” rather than “divisiveness.” The implication is unmistakable. Contrary to the long-held socially conservative mantra, Thurmond says the flag does not represent fidelity to an honorable heritage, but to a racist, violent, sinful past.
In announcing this change, Thurmond has declared that the voice of the black community, which long called for this change, is more important than the voice of a significant portion of the white community, which had for just as long called to maintain the status quo. Inclusivity, with its explicit appeal to common membership in a broader community that transcends race, has trumped the traditional exclusivity of southern, white, social conservatism.
This is an extraordinarily potent declaration. Calling divisive symbols into question, demanding anew that they prove themselves worthy of inclusion in the conservative canon, and repudiating them if they are found wanting implies a healthy receptivity to profound change. And if applied conscientiously, a determination to denounce symbols deriving from a racist, divisive past would sweep away much of the iconography of modern conservatism.
In particular, we have known for years that much of the architecture of the criminal justice system has been built around precisely such symbols: Willie Horton, the welfare queen, the crack whore. These and other symbols have generated an entire set of divisive law enforcement and prosecution strategies, like the war on drugs and “zero tolerance” policing, that have been broadly endorsed by whites but widely deployed against blacks. If the denunciation of the Confederate flag implies a willingness to revisit these toxic symbols and failed strategies, and to heed the voice of the black community, then criminal justice reform is truly upon us.
I may be hopeful, but I am not naïve. I have no illusions that the repudiation of the Confederate battle flag, by itself, will eliminate racism in this country or make the criminal justice system fair. But the combination of message and messenger—elite social conservatives siding with an historically marginalized black community over numerically, economically, and culturally dominant whites to remove a divisive symbol of oppression—is an enormously important step that should be encouraged.

Scalia Slams Roberts as Biased In Obamacare Cases

ORIGINAL ARTICLE 

by JOEL GEHRKE June 25, 2015 10:46 AM @JOELMENTUM

I​n a blistering dissent from the majority in King v. Burwell this morning, Supreme Court Justice Antonin Scalia said President Obama’s signature domestic policy achievement should be called “SCOTUScare” rather than Obamacare, in light of how many times Chief Justice John Roberts has intervened to protect the law from a crippling legal defeat. Scalia argued that Roberts rewrote the law twice in 2012, and has now done so a third time in his King decision, which allows the IRS to continue providing subsidies to people who purchase insurance in the federal government’s health-care exchange.

“The somersaults of statutory interpretation they have performed (‘penalty’ means tax, ‘further [Medicaid] payments to the State’ means only incremental Medicaid payments to the State, ‘established by the State’ means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence,” Scalia wrote in his dissent. “And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.”

Roberts acknowledged that there was a “strong” case to be made that the subsidies were only allowed to be provided through state-run exchanges, but he said the fact that ruling that way would cripple the law demonstrated that Congress must not have intended the law to be read that way. “In petitioners’ view, Congress made the viability of the entire Affordable Care Act turn on the ultimate ancillary provision: a sub- sub-sub section of the Tax Code,” Roberts wrote in the majority opinion, which was joined by the four liberals and Justice Anthony Kennedy. “We doubt that is what Congress meant to do.”

Roberts quoted Scalia’s 2012 dissent in the Obamacare case against him. “‘Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all,’” Roberts recalled Scalia writing. “So it stands to reason that Congress meant for those provisions to apply in every State as well.”

Williams-Yulee Decision 

May 22, 2015

The Significance of the Supreme Court’s Williams-Yulee Decision Upholding Florida’s Regulation of Judicial Elections

  
by Vikram David Amar

A few weeks ago the Supreme Court handed down an important yet under-noticed case, Williams-Yulee v. Florida Bar, in which a 5-4 majority upheld a Florida law that forbids candidates running in contested elections for judicial office from personally soliciting campaign contributions, even though the state permits such candidates to raise money through surrogates (campaign committees) and also allows candidates to find out who contributed to their campaigns. In the space below, I identify four key takeaways from this “sleeper” ruling by the Court, a ruling that affords important insights about constitutional doctrine and also about the membership of the Roberts Court.
The Speech Clause Juggernaut May Be Losing Steam

The (unsuccessful) challenge to the Florida law was brought under the First Amendment; the defendant in Williams-Yulee argued that Florida’s ban on personal solicitation was a regulation that singled out certain speech—a personal request for money—because of its content, in violation of free speech principles. The Court acknowledged that the Florida law was a content-based regulation of political speech (and, as explained in more detail below, thus purported to apply “strict scrutiny” to the matter), but nonetheless upheld the law because of the important countervailing interest in preserving public confidence in the integrity of the judiciary.
In holding that public perceptions of integrity should carry the day, the Williams-Yulee ruling stands in contrast to the great majority of free speech cases decided by the Court over the last generation. Since the early 1990s, the overwhelming majority of plausible free speech claims (and the defendant’s claim in Williams-Yulee was certainly plausible) that have reached the Court have prevailed, and expressive autonomy has regularly trumped competing constitutional and societal values. Over the last quarter-century, the Court has invoked the Speech Clause to invalidate federal, state, or local laws and regulations in well over fifty cases, averaging close to three cases each year, a substantial number given the Court’s small yearly docket of between seventy and eighty cases for most of that period.
But a quantitative inquiry tells only part of the story. It is particularly noteworthy that First Amendment claims grounded in expressive autonomy rights have not just been winning, but have been winning against—and requiring significant sacrifices of—other values that traditionally have enjoyed high esteem in our legal, social, and constitutional traditions, including the efficient functioning of labor unions, the protection of military honor and military families, antidiscrimination laws and norms, election and campaign finance regulation intended to make elections more free and fair, parental control over the upbringing of their children, and consumer protections, among others.
Whether Williams-Yulee represents simply one exception to this great tide of free speech victories, or instead should be viewed as part of the beginning of a more balanced approach to free speech cases remains to be seen. There are at least two (and maybe more) other interesting and difficult free speech decisions yet to be decided this Term. The first is a case that considers the extent to which the First Amendment protects against prosecution individuals who utter words that cause objectively reasonable people to feel fear (Elonis v. U.S.), and the second is a case about how readily a State can discriminate among messages on personalized automobile license plates (Walker v. Texas Division, Sons of Confederate Veterans). It is possible that the free speech claimants in both of those cases (who assert plausible, if to my mind flawed, free speech arguments) will also lose. If that happens, commentators will begin to wonder whether the free speech juggernaut is indeed beginning to slow.
“Strict Scrutiny” Is in the Eye of the Applier

As I noted above, the Court in Williams-Yulee applied strict scrutiny—which requires the government to prove that the law in question is narrowly tailored to serve a compelling interest—to the Florida election regulation. But, as Justice Scalia remarked in dissent, “[although the Court] purports to reach [its] destination by applying strict scrutiny, . . . it would be more accurate to say that it does so by applying the appearance of strict scrutiny.” In particular, the Court seemed quite tolerant of underinclusiveness in Florida’s scheme, whereas significant underinclusiveness usually prevents a statutory scheme from being considered “narrowly tailored” in the way that strict scrutiny dictates.
For example, the defendant pointed out that Florida permits candidates to write personal thank-you notes to donors (guaranteeing that the candidates will know who the donors are) and also allows campaign committees to act explicitly on behalf of candidates in directly soliciting donations. If personal solicitations by candidates undermine “public confidence in judicial integrity,” why do not these other practices create the same harm? The Court acknowledged that Florida does allow activities that might create some suspicion over whether judges are beholden to or favor donors, but concluded that “narrowly tailored” does not mean “perfectly tailored,” and that the “First Amendment does not put a State to [an] all-or-nothing choice.” For the Williams-Yulee majority, it was sufficient that Florida has targeted the “conduct most likely to undermine public confidence[,]” and that personal solicitations are “categorically different” from solicitations by campaign committees. The Court did not go to great lengths to explain this “categorical” difference, other than to say that while committee and personal solicitations may be “similar . . . in substance, a State may conclude that they present markedly different appearances to the public.”
Importantly, though, the Court did not cite to, or seem to insist upon, any proof by the State that these two types of solicitations were viewed differently by the public. Indeed, when the Court said that a State “may conclude,” it was using language most often associated with deferential review—where benefits-of-the-doubt about the real-world state of affairs are given to the government—not the language of truly strict scrutiny, in which the government must establish not just that its views are plausible, but that its views are grounded in actual fact.
Stare Decisis Is Often Not Very Powerful at the Court

The seemingly generous implementation of strict scrutiny brings up another important facet of Williams-Yulee—its tension with the most relevant Supreme Court case in the realm of judicial election regulation. There is, as one of the Williams-Yulee opinions put it, “only [one] prior case concerning speech restrictions on a candidate for judicial office”—the 2002 case of Republican Party of Minnesota v. White. And in that case the Court (in striking down Minnesota’s judicial election regulation) applied a stricter version of strict scrutiny.
In White five Justices used the First Amendment to strike down a Minnesota law that prohibited candidates for judicial office from speaking out on controversial issues of the day. The law at issue prohibited a candidate for elected judicial office from “announc[ing] his or her views on disputed legal or political issues.” The prohibition went beyond candidate “promises” and forbade, for example, a candidate from criticizing a past court decision and indicating a willingness to consider a different result in similar cases down the road.
Minnesota argued that it needed to regulate candidate speech to ensure that the public believes that judges are sufficiently open-minded about important matters that might come before them, an interest very similar to Florida’s goal of “preserving public confidence in judicial integrity.” But Justice Scalia’s opinion for the majority in White rejected this justification for Minnesota’s law because the scheme was woefully underinclusive, insofar as judicial candidates were not prohibited from voicing their views prior to the time they became declared candidates. The Court rejected the argument, made by dissenting Justices, that “statements made in an election campaign pose a special threat to open-mindedness because the candidate, when elected judge, will have a particular reluctance to contradict them.” The Court said that the idea that judges feel particularly constrained by statements they make qua candidates is “not self-evidently true[,]” and thus cannot carry the day given the “burden [on the government] imposed by our strict scrutiny test to establish th[e] proposition that campaign statements are uniquely destructive of open-mindedness [or the appearance of open-mindedness].”
The tension between White and Williams-Yulee is clear. In the former, the State lost because it did not prove that campaign statements were “uniquely” destructive of the appearance of open-mindedness, but in the latter the State prevailed because it was allowed to “conclude” (without any proof) that personal solicitations “present markedly different” appearances to the public as compared to committee solicitations. Why Minnesota had to prove “unique” destruction of confidence whereas Florida could simply reasonably surmise “markedly different” problems of public perception is left unexplained.
Let me be clear here that I think the overall approach of Williams-Yulee is largely correct and that the analysis of the White majority was largely misguided. As I have written in law review articles and elsewhere, while the First Amendment protects one’s right to speak about the bench, there is no right to to sit on it, and the Tenth Amendment gives states broad powers to regulate the process by which people become judges. The key point is not merely that judges are not supposed to be politicians; it is that throughout American history, we have often selected judges (but not legislators or chief executive officers) without the use of contested elections. And in these non-election processes, what would-be judges have said and done is held against them by government decisionmakers. Just as the president and the Senate certainly, and permissibly, may refuse to make someone a federal judge because of what that person has said, even though such refusals are undeniably “content-based” and indeed “viewpoint-based,” and thus might, in other contexts, run afoul of basic First Amendment principles, a state should be generally available to deny judicial office to candidates who speak in ways that contradict certain judicial decorum norms set by the state. (There is the separate question, implicated in both White and Williams-Yulee, of whether the sanction for violating campaign rules can extend beyond mere disqualification for judicial office, which is a topic I save for another day.)
But my point here is not that Williams-Yulee’s result is wrong—only that its application of strict scrutiny is not very authentic and that its leniency contradicts the approach in White.
Chief Justice Roberts Is no Clone of Chief Justice Rehnquist

How do we explain the tension between White and Williams-Yulee? The answer seems to rest largely on changes to the Court’s personnel. White was a 5-4 case, with the majority consisting of Chief Justice Rehnquist and Justices O’Connor, Scalia, Kennedy, and Thomas. The dissenters were Justices Stevens, Souter, Ginsburg, and Breyer.
In Williams-Yulee, the remaining White dissenters (Ginsburg and Breyer) are (predictably) in the majority, and the remaining members of the White majority (Justices Scalia, Kennedy, and Thomas) are (predictably) in the dissent. Between White and Williams-Yulee, Justice Alito replaced Justice O’Connor, and voted the same way as we would have expected her to vote, and Justices Kagan and Sotomayor replaced Justices Stevens and Souter, and voted the same way as we would have expected them to vote. So far, so good—an even swap.
But Chief Justice Roberts, who replaced Chief Justice Rehnquist, did not follow in the footsteps of his predecessor here. So what was a 5-4 majority in favor of the First Amendment claimant in White became in Williams-Yulee a 5-4 majority in favor of the State. Chief Justice Roberts apparently has a different view of judicial elections (and the extent to which First Amendment protections for election-related speech apply to them) than his mentor and former boss. Whether there is a broader divergence between Chief Justice Roberts and his predecessor in First Amendment cases is a question that might be worthy of more attention now that the Roberts Court is finishing its first decade

AMERICANS ‘PREFER CHRISTIANS FOR THEIR RULERS’

Bill Federer remembers John Jay’s suggestion for citizen ‘duty’

The first chief justice of the U.S. Supreme Court, appointed by George Washington, was also president of the American Bible Society. Who was he? John Jay, who died May 17, 1829. John Jay was one of the presidents of the Continental Congress.

“In governments raised on the generous principles of equal liberty … rulers of the state are the servants of the people, and not the masters of those from whom they derive authority. … The ungrateful despotism and inordinate lust of domination, which marked the unnatural designs of the British king and his venal parliament, to enslave the people of America, reduced you to the necessity of either asserting your rights by arms, or ingloriously passing under the yoke.”

As chief justice of the state of New York, John Jay charged the grand jury of Ulster County, Sept. 8, 1777: “The infatuated sovereign of Britain, forgetful that kings were the servants, not the proprietors, and ought to be the fathers, not the incendiaries of their people. … What … can appear more unworthy of credit than … a prince should arise who, by the influence of corruption alone … to reduce three million of his most loyal and affectionate subjects to absolute slavery … binding them in all cases whatever, not even excepting cases of conscience and religion? … Will it not appear extraordinary that thirteen colonies … without funds … without disciplined troops, in the face of their enemies, unanimously determine to be free, and, undaunted by the power of Britain, refer their cause to the justice of the Almighty. …”

John Jay signed the Treaty of Paris with Franklin and Adams which ended the Revolutionary War. The treaty began: “In the name of the Most Holy and Undivided Trinity.”

John Jay noted in 1777: “This glorious revolution … distinguished by so many marks of the Divine favor and interposition … and I may say miraculous, that when future ages shall read its history they will be tempted to consider a great part of it as fabulous. …

“The many remarkable … events by which our wants have been supplied and our enemies repelled … are such strong and striking proofs of the interposition of Heaven, that our having been hitherto delivered from the threatened bondage of Britain ought, like the emancipation of the Jews from Egyptian servitude, to be forever ascribed to its true cause … and kindle in them a flame of gratitude and piety which may consume all remains of vice and irreligion.

“Blessed be God! The time will now never arrive when the prince of a country in another quarter of the globe will command your obedience, and hold you in vassalage. … Nor will you in future be subject to the imperious sway of rulers instructed to sacrifice your happiness whenever it might be inconsistent with the ambitious views of their royal master.”

Jay, together with Madison and Hamilton, helped ratify the Constitution by writing the Federalist Papers. John Jay wrote in 1777: “The Americans are the first people whom Heaven has favored with an opportunity of … choosing the forms of government under which they should live. All other constitutions have derived their existence from violence or accidental circumstances. …

“Your lives, your liberties, your property, will be at the disposal only of your Creator and yourselves. You will know no power but such as you will create; no authority unless derived from your grant; no laws but such as acquire all their obligation from your consent. … Security is also given to the rights of conscience and private judgment. They are by nature subject to no control but that of the Deity. … Every man is permitted to consider, to adore, and to worship his Creator in the manner most agreeable to his conscience. …”

John Jay wrote in Chisholm v. Georgia, 1793: “The people are the sovereign of this country.”

With the support of George Washington and Alexander Hamilton, he negotiated the Jay Treaty which resulted in ten years of peaceful trade with Britain while France was going through a bloody Revolution.

When America’s currency was losing value, giving rise to the idiom “not worth a Continental,” John Jay, as president of the Continental Congress, wrote Sept. 13, 1779: “Depreciation of the currency has … swelled the prices of every necessary article. … Depreciation is to be removed only by lessening the quantity of money in circulation. … A distrust … by the mass of the people … in the ability … of the United States to redeem their bills, is the cause of it. … A bankrupt faithless republic would … appear among reputable nations like a common prostitute among chaste and respectable matrons. … It has been already observed, that in order to prevent the further natural depreciation of our bills, we have resolved to stop the press.”

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John Jay stated in 1777: “The constitution, however, has wisely declared, that the ‘liberty of conscience thereby granted shall not be so construed as to excuse acts of licentiousness’ … The convention by whom that constitution was formed were of opinion that the gospel of Christ, like the ark of God, would not fall, though unsupported by the arm of flesh. … But let it be remembered that whatever marks of wisdom … may be in your constitution, yet like the … forms of our first parents before their Maker breathed into them the breath of life, it is yet to be animated. … From the people it must receive its spirit. …

“Vice, ignorance, and want of vigilance will be the only enemies able to destroy it. … Every member of the State ought diligently to read and to study the constitution. … By knowing their rights, they will sooner perceive when they are violated, and be the better prepared to defend. … Hence it becomes the common duty … to unite in repressing the licentious … and thereby diffusing the blessings of peace.”

On April 15, 1818, John Jay wrote to his Quaker friend, John Murry: “Natural Laws and Morality are given by the Sovereign of the Universe to all mankind. … It is true that the law was given to Moses, not however in his individual or private capacity, but as the agent or instrument, and by the authority of the Almighty. The law demanded exact obedience, and proclaimed: ‘Cursed is every one that continueth not in all things which are written in the book of the law to do them.’ The law … by requiring perfect obedience, under a penalty so inevitable and dreadful, operated as a schoolmaster to bring us to Christ for mercy.

“Legal punishments are adjusted and inflicted by the law and magistrate, and not by unauthorized individuals. These and all other positive laws or ordinances established by Divine direction, must of necessity be consistent with the moral law. It certainly was not the design of the law … to encourage a spirit of personal or private revenge. On the contrary, there are express injunctions in the law of Moses which inculcate a very different spirit.”

Writing to John Bristed, April 23, 1811, John Jay recounted: “I was at a large party, of which … several … spoke freely and contemptuously of religion. … An atheist very abruptly remarked that there was no God, and he hoped the time would come when there would be no religion in the world. I very concisely remarked that if there was no God there could be no moral obligations, and I did not see how society could subsist without them.”

John Jay told the New York convention, Dec. 23, 1776: “Let a general reformation of manners take place … united in preparing for a vigorous defense of your country. …When you have done all things, then rely upon the good Providence of Almighty God for success, in full confidence that without his blessings, all our efforts will inevitably fail. … The Holy Gospels are yet to be preached to these western regions, and we have the highest reason to believe that the Almighty will not suffer slavery and the gospel to go hand in hand. It cannot, it will not be.”

On April 15, 1794, John Jay wrote to his wife, Sally, from England: “If it should please God to make me an instrument to the continuation of peace, and in preventing the effusion of blood and other evils and miseries incident to war, we shall both have reason to rejoice. … Let us repose unlimited trust in our Maker; it is our business to adore and to obey.”

On May 28, 1802, John Jay wrote to his children after his wife’s death: “Now if Christ be preached that he rose from the dead, how say some among you that there is no resurrection of the dead? … Behold I show you a mystery; we shall not all sleep, but we shall all be changed. … Death is swallowed up in victory. (I Corinthians 15)”

On Oct. 12, 1816, John Jay stated: “Providence has given to our people the choice of their rulers, and it is the duty, as well as the privilege and interest of our Christian nation to select and prefer Christians for their rulers.”

On Jan. 1, 1813, John Jay penned a letter to Jedediah Morse: “Whether our Religion permits Christians to vote for infidel rulers is a question which merits more consideration than it seems yet to have generally received, either from the clergy or the laity. It appears to me that what the prophet said to Jehoshaphat about his attachments to Ahab (‘Shouldest thou help the ungodly and love them that hate the Lord?’ 2 Chron. 19:2) affords a salutary lesson. … Public measures may not be a proper subject for the pulpit, yet, in my opinion, it is the right and duty of our pastors to press the observance of all moral and religious duties.”

John Jay, at the age of 14, was admitted to King’s College in New York (Columbia University), which had as a requirement translating the first ten chapters of the Gospel of John from Greek into Latin. From it inception in 1816, John Jay was the first vice president of the American Bible Society.

In 1821, John Jay, though in poor health, accepted the position as the second president of the American Bible Society. He wrote: “They who regard these Societies as deriving their origin and success from the author and Giver of the Gospel, cannot forbear concluding it to be the duty of Christians, to promote the purposes for which they have been established; and that is particularly incumbent on their officers to be diligent in the business committed to them.”

On May 13, 1824, he addressed the American Bible Society: “By conveying the Bible to people thus circumstanced, we certainly do them a most interesting kindness. We thereby enable them to learn that man was originally created and placed in a state of happiness, but, becoming disobedient, was subjected to the degradation and evils which he and his posterity have since experienced. The Bible will also inform them that our gracious Creator has provided for us a Redeemer, in whom all the nations of the earth shall be blessed; that this Redeemer has made atonement ‘for the sins of the whole world,’ and thereby reconciling the Divine justice with the Divine mercy has opened a way for our redemption and salvation; and that these inestimable benefits are of the free gift and grace of God, not of our deserving, nor in our power to deserve.”

John Jay stated: “In forming and settling my belief relative to the doctrines of Christianity, I adopted no articles from creeds but such only as, on careful examination, I found to be confirmed by the Bible. … At a party in Paris, once, the question fell on religious matters. In the course of it, one of them asked me if I believed in Christ? I answered that I did, and that I thanked God that I did.”

John Jay stated: “God is great, and therefore He will be sought: He is good, and therefore He will be found. If in the day of sorrow we own God’s presence in the cloud, we shall find Him also in the pillar of fire, brightening and cheering our way as the night comes on. In all His dispensations God is at work for our good: in prosperity, He tries our gratitude; in mediocrity, our contentment; in misfortune, our submission; in darkness, our faith; under temptation, our steadfastness, and at all times, our obedience and trust in Him. God governs the world, and we have only to do our duty wisely, and leave the issue to Him.”

John Jay was sent a letter from the Corporation of the City of New York, asking him to join with them in the celebration of America’s 50th anniversary. John Jay, at 82 years of age, replied on June 29, 1826: “Earnest hope that the peace, happiness, and prosperity enjoyed by our beloved country may induce those who direct her national counsels to recommend a general and public return of praise to Him from whose goodness these blessings descend. … The most effectual means of securing the continuance of our civil and religious liberties is, always to remember with reverence and gratitude the Source from which they flow.”

In his last will and testament, John Jay wrote: “Unto Him who is the Author and Giver of all good, I render sincere and humble thanks for His merciful and unmerited blessings, and especially for our redemption and salvation by his beloved Son. He has been pleased to bless me with excellent parents, with a virtuous wife, and with worthy children. His protection has accompanied me through many eventful years, faithfully employed in the service of my country; and his providence has not only conducted me to this tranquil situation, but also given me abundant reason to be contented and thankful.

“Blessed be His Holy Name. While my children lament my departure, let them recollect that in doing them good, I was only the agent of their Heavenly Father, and that He never withdraws His care and consolations from those who diligently seek Him.”

On May 17, 1829, John Jay was drawing near death after a life of serving his country. As recorded by his son, Judge William Jay, John Jay was asked if he had any words for his children, to which he responded: “They have the Book.”


Read more at http://www.wnd.com/2015/05/americans-prefer-christians-for-their-rulers/#h2MzfVMBB3cbKjYQ.99

Is the Federal Government Really a State, if the IRS Says It Is?

By July 4, the Supreme Court will have decided King v. Burwell. (Those of us who write about the most recent cases sometimes do not have a work-free July 4th weekend, but the Justices always do. The justices like a summer vacation longer than just a few weeks, so I can confidently predict we will know the answer before July 4, and most likely before the end of June.)

King v. Burwell involves the Patient Protection and Affordable Care Act [Pub. L. No. 111-148]—popularly called either the “ACA,” or “Obamacare” by both its opponents and its proponents. The litigation now before the Supreme Court is, on the surface, a simple issue of statutory interpretation. Only millimeters beneath the surface is a broader issue—how far will the courts go in allowing administrators to change the law by simply redefining terms that are not vague at all. This issue is peculiarly significant because the agency doing the redefining is the Internal Revenue Service. The first named defendant is Sylvia Burwell, the Secretary of Health and Human Services, but another defendant is the IRS, and it is the agency doing the redefining. No case has ever held that Congress could delegate to the IRS the power to raise or lower taxes.

The ACA, in Section 1311 [42 U.S.C. § 18031], provides that states shall create Health Benefit Exchange (“Health Exchanges”). If they meet certain criteria, they are “Qualified Health Exchanges.” The qualified Exchanges qualify for federal subsidies. Nonqualified exchanges do not.

The Court has consistently held that Congress does not have the constitutional power to order or commandeer states to enact particular laws. New York v. United States, 505 U.S. 144 (1992); Printz v. United States, 521 U.S. 898 (1997). While Congress cannot force a state to enact a qualified Health Exchange, it can use its taxing and spending power to “bribe” states by offering various incentives to states that enact and implement the kind of laws that Congress wants. That is what the ACA does.

It provides that if a state creates a qualified Health Exchange by January 1, 2014, then another section of the law—26 U.S.C. § 36B, in the Internal Revenue Code —offers generous subsidies. The subsidies are in the form of ‘‘premium assistance tax credits” and “refundable tax credits.” They not only reduce tax liability but also provide for federal money paid to private insurance companies.

Congress also created a fallback position: if a state refuses to set up a State Health Exchange, a different section of the ACA [42 U.S.C. § 18041(c)] authorizes the Secretary of Health and Human Services (HHS) to set up Federal Exchanges in those states that refuse to set up a State Exchange.

No provision of the ACA offers any tax subsidies or payments for federally created (as opposed to state created) Health Exchanges. That supports the carrot-and-stick approach to encourage states to create, implement, and maintain state Health Exchanges. In other words, if the state creates a Health Exchange, its citizens secure valuable tax benefits in addition to acquiring health insurance. If the state refuses to create, implement, and maintain a Health Exchange, that state’s citizens do not receive the financial benefits, but they will have to pay federal taxes that finance the subsidies that residents in other states (those with state-created Exchanges) will receive.

Besides to the financial incentives (carrots), the ACA has disincentives (sticks) to prod states to set up Health Exchanges. For example, the law penalizes states that do not create Exchanges by barring them from narrowing their state Medicaid programs until “an Exchange established by the State . . . is fully operational.” [42 U.S.C. § 1396a(gg)]

As one proponent of the law explained,

[I]f you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits—but your citizens still pay the taxes that support this bill. So, you’re essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country.

Congress expected that all or most states would take this “bribe” because it gave an offer that was hard to refuse.

Nonetheless, some states—actually a lot of states34 of them — did not pick up the free federal subsidies (the carrots) and were willing to put up with the disincentives (the sticks). They simply refused to establish State Exchanges. It turned out that the ACA has not been as popular as its proponents believed it would be. Indeed, polls show that the more people learn about the law, the less favorably they view it. Moreover, many individuals have concluded that it is quite rational to not pay for health insurance until they get sick, because the fines are often not very much and the ACA does not allow insurance companies to refuse coverage because of preexisting medical conditions.

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