The Supreme Court Tips Its Hand
The Supreme Court Tips Its Hand
In a win for judicial independence, the Supreme Court this week upheld the ability of states to ban judges and judicial candidates from directly soliciting campaign contributions in their judicial elections. On the eve of oral argument, I wrote a background of the case in an article entitled: Williams-Yulee Is Not About Free Speech, It’s About Judicial Integrity.
Chief Justice Roberts, writing on behalf of the majority, asserted that “Judges, charged with exercising strict neutrality and independence, cannot supplicate campaign donors without diminishing public confidence in judicial integrity.” In so doing, the Court protected bans on direct solicitations by judicial candidates that are in effect in approximately 30 of the 39 states with judicial elections.
While a victory for judicial independence, the decision highlights the big flaw in the Court’s rulings when it comes to the rest of our democracy. The Court reasoned that a politician for legislative and executive office is “expected to be appropriately responsive to the preferences of their supporters,” whereas a “judge is not to follow the preferences of his supporters, or provide any special consideration to his campaign donors.” The Court explains that “[e]ven the mere possibility that judges’ decisions may be motivated by the desire to repay campaign contributions is likely to undermine the public’s confidence in the judiciary.” But the Court implicitly reasons that it is permissible, and even expected, that politicians cater to their donors.
The rest of us beg to differ. Our elected officials are supposed to represent voters not powerful special interests and billionaires. Citizens United, and McCutcheon opened the floodgates for corporate and big-donor spending in our elections, and the results are no surprise. Our representative democracy has been severely compromised as a result of politicians prioritizing the preferences of their wealthy donors over the other 99%. It is therefore no surprise that public confidence in our government is at an all-time low. Just 13% of Americans believe that government can be trusted to do what’s right at least most of the time, compared with 36% in the wake of Watergate.
While it is significant that the Court acknowledges the need to protect public confidence in the judiciary, public confidence in the branches responsible for crafting and implementing the law is equally important in a democratic republic.