Another analysis of Williams-Yulee v. The Florida Bar was published this week, this time in Verdict. Vikram David Amar explains his major takeaways from the case, and what they mean for the future of free speech cases in the Supreme Court.
First, Amar asserts that “the speech clause juggernaut may be losing steam,” because the majority upheld a restriction of political speech in favor of another interest: that of “preserving public confidence in the integrity of the judiciary.” The Court has recently ruled in favor of the First Amendment over “other values that traditionally have enjoyed high esteem,” and Yulee signifies what could potentially be a significant shift in the Court’s rulings.
According to Amar’s analysis, the case also diverted from court tradition in another significant way: strict scrutiny was applied more liberally than usual. Under strict scrutiny, the government is required to “prove that the law in question is narrowly tailored to serve a compelling interest.” Justice Antonin Scalia addressed why the law may not uphold the stated interest – public confidence in the judiciary – in his dissent: judicial candidates are still permitted to know who the donors are and have contact with them. Amar asserts that the majority rejected this argument, straying from the traditional understanding of what a “narrowly tailored” law is.
Amar also suggested that precedent may not be as important to the Court as is usually assumed, and that Chief Justice John Roberts can bring different logic to the table than his predecessor, Chief Justice William Rehnquist.