The Court’s campaign finance jurisprudence has come under just criticism for its incoherence, and today’s decision on judicial campaign finance does not mark a step toward improvement. There is much to be said about the case, but a good starting point is the question of whether Chief Justice Roberts is right to say—in fact, to assert flatly—that “judges are not politicians.” Williams-Yulee v. Florida Bar, No. 13-499, slip op. at 1 (2015). The Chief Justice is joined in this view, quite emphatically, by Justice Ginsburg, who argues, as she has before, that judges do not participate in representative democratic processes—and so are not properly seen to be politicians. Over a decade ago, in Republican Party of Minnesota v. White, Justice Scalia, then writing for the Court, had countered that the distinction drawn between judicial and other elections had been exaggerated: “the complete separation of the judiciary from the enterprise of “representative government”…is not a true picture of the American system.” 536 U.S. 765, 784. In the case today, the Court doubles down on the contrary proposition.
Of course, when campaigning for offices, judges are politicians: they are doing what politicians do, and as the Chief Justice concedes that they do:
[Judicial ] candidates can write letters, give speeches, and put up billboards. They can contact potential supporters in person, on the phone, or online. They can promote their campaigns on radio, television, or other media.
Williams-Yulee at 17. But somehow they are not politicians when engaged in political campaigning. The Chief Justice insists that the State does not have to “treat judicial candidates like campaigners for political office”, id. at 1, and then describes them as just such campaigners.
Of course, the means the candidates pursue to win include raising money from supporters. And to raise the money, they suggest what kind of judge they intend and even commit to be, and those who contribute to their campaign might have entirely legitimate expectations that their performance will match the promise.