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As Sharon McCloskey reported in this space yesterday, the the U.S. Supreme Court handed down a modest victory for democracy this week when it said that states can ban direct campaign solicitations by judges. Would that North Carolina would join the list of states to do so.

What was perhaps the most amazing thing about the Court’s ruling, however, was Chief Justice John Roberts’ rationale. Ian Millhiser of Think Progress explains:

“Chief Justice John Roberts’s opinion for the Court in Williams-Yulee is certainly better for campaign finance regulation than a decision striking down this limit on judicial candidates — had the case gone the other way, judges could have been given the right to solicit money from the very lawyers who practice before them. Yet Roberts also describes judges as if they are special snowflakes who must behave in a neutral and unbiased way that would simply be inappropriate for legislators, governors and presidents:

‘States may regulate judicial elections differently than they regulate political elections, because the role of judges differs from the role of politicians. Politicians are expected to be appropriately responsive to the preferences of their supporters. Indeed, such ‘responsiveness is key to the very concept of self-governance through elected officials.’ The same is not true of judges. In deciding cases, a judge is not to follow the preferences of his supporters, or provide any special consideration to his campaign donors. A judge instead must ‘observe the utmost fairness,’ striving to be “perfectly and completely independent, with nothing to influence or controul [sic] him but God and his conscience.” As in White, therefore, our precedents applying the First Amendment to political elections have little bearing on the issues here.’

Most Americans would undoubtedly agree that judges should not ‘follow the preferences’ of their political supporters, as they would agree that judges should not ‘provide any special consideration to his campaign donors.’ But the implication of the passage quoted above is that members of Congress, state lawmakers, governors and presidents should provide such consideration to their supporters and to their donors. The President of the United States is the president of the entire United States. A member of Congress represents their entire constituency. Yet Roberts appears to believe that they should ‘follow the preferences’ of their supporters and give ‘special consideration’ to the disproportionately wealthy individuals who fund their election.”

Sadly, as Millhiser concludes, the view that it’s okay for donors to buy politicians is at the heart of the Court’s unabashed ruling in the infamous Citizens United decision. What’s bizarre about this week’s ruling is the Court majority’s apparent obliviousness to their own hypocrisy when it comes to donors buying judges.

News

Supreme courtIn an opinion with implications for those states where judges are elected, the U.S. Supreme Court ruled today in a plurality opinion that states can ban direct solicitations.

In the case out of Florida, Williams-Yulee v. Florida State Bar, lawyer Lanell Williams-Yulee landed in hot water with the state bar after, in connection with her candidacy for a county judgeship, she sent out a mass mailing with her signature asking for contributions.

Williams-Yulee challenged a state law banning direct requests for money by judges, saying it violated her First Amendment freedom of speech, but the Florida Supreme Court disagreed, saying that the prohibition was “one of a constellation of provisions designed to ensure that judges engaged in campaign activities are able to maintain their status as fair and impartial arbiters of the law.”

Of the 39 states that have some form of elections for judges, 30 prohibit judges from personally soliciting campaign contributions.

That’s not the case in North Carolina — one of the nine states which allow judicial candidates to directly ask for campaign contributions from attorneys and law firms as well as other members of the public.

That’s been the law here since 2003, when according to a report by the Brennan Center for Justice, the justices of the Supreme Court radically revised the rules of judicial conduct, without any input from the public:

North Carolina not only turned the political activity regulations on their heads—changing the basic canon from “A judge should refrain from political activity inappropriate to his judicial office” to the current “A judge may engage in political activity consistent with his status as a public official”—but also eliminated the Pledge or Promise Clause and the ban on candidates’ personally soliciting campaign contributions.

(The Pledge or Promise Clause prohibits judicial candidates from making “pledges or promises of conduct in office other than the faithful and impartial performances of the duties of the office.”)

The current judicial code of conduct allows judges to speak at political party events, personally solicit contributions, identify themselves as affiliated with a particular party and otherwise engage in activities “consistent with the judge’s status as a public official.”

Read more about the implications of the Williams-Yulee decision for North Carolina here.

News

Start your morning with this excellent essay by Slate’s Dahlia Lithwick about instances where the wheels fell off the gay marriage opposition bus yesterday, including most notably the failure of attorneys for that side to reach the critical swing vote, Justice Anthony Kennedy, where he lives — in the world of dignity.

As Lithwick points out, Kennedy has been all about dignity — she calls him the “dignity-whisperer” — in court decisions he’s authored touching upon the institution of marriage.

So when counsel for Michigan defending that state’s ban paints marriage into some sort of biological-bonding corner, he gets Kennedy’s goat:

[T]here is a rather extraordinary moment Tuesday morning . . . when Kennedy finds himself in an argument with John Bursch, Michigan’s special assistant attorney general, about whether marriage is a dignity-conferring enterprise, or not. Bursch, defending his state’s ban on same-sex marriage, is explaining that the purpose of marriage is not to confer dignity but to keep parents bonded to their biological children.

Justice Kennedy—who opened argument Tuesday morning with the observation that this whole case is about an institution whose definition has gone unchanged for millennia—looks rather shocked. The author of the majority decision outlawing sodomy bans in Lawrence v. Texas (“Adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons”) and the decision striking down the Defense of Marriage Act in United States v. Windsor (“It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage”) did not want to hear this. Indeed, it seems like Kennedy wanted it to be perfectly clear that he is the guy who gets to say that if marriage is nothing else, it is a dignity-stamper.

The tussle between Kennedy and Bursch doesn’t end there, with the attorney circling back to the dignity point later in the argument:

Bursch circles back to say, again, “marriage was never intended to be dignity bestowing.” At which point Kennedy almost bursts a pipe: “I don’t understand that [marriage] is not dignity bestowing. I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage. … It’s dignity bestowing, and these parties say they want to have that same ennoblement.”

Bursch replies that the “state is trying to figure out how do we link together these kids with their biological moms and dads when possible, the glue are benefits and burdens, but not necessarily dignity.” Anthony “Dignity” Kennedy can’t even believe it: “Well, I think many states would be surprised, with reference to traditional marriages, they are not enhancing the dignity of both the parties.” It seems to me that nobody puts Dignity Kennedy in the corner. Not even Michigan.

Read more on the argument yesterday here, and what the case might mean for North Carolina here.

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News
(Sketch: Art Lien @Courtartist)

(Sketch: Art Lien @Courtartist)

Starting at 10 a.m. , the U.S. Supreme Court begins hearing two-and-a-half hours of argument in the cases challenging state bans on same-sex marriage.

Since no cameras or other audio/video equipment is allowed in the courtroom, there will be no live feed of the argument.

The Court is, however, expediting the release of the taped argument, which should be available by 2 p.m. today.

In the meantime, we’ll be posting about the arguments here as we learn more from experts and others who are in the courtroom.

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More on audio feed at the Court:

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Images from outside the Court:

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Hillary Rodham Clinton showing support:

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From the New York Times:

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First updates from SCOTUSblog:

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Reaction so far:  “skeptical” questions from the justices:

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Attorney for challengers wrapping up initial argument (from SCOTUSblog):

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First update on challengers’ argument from NYT:

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SCOTUSblog on questions from Justice Anthony Kennedy:

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Justices “deeply divided,” says NYT’s Adam Liptak in this initial report:

The Supreme Court on Tuesday seemed deeply divided about one of the great civil rights issues of the age: whether the Constitution guarantees same-sex couples the right to marry.

The justices appeared to clash over not only what is the right answer but also over how to reach it. The questioning illuminated their conflicting views on history, tradition, biology, constitutional interpretation, the democratic process and the role of the courts in prodding social change.

Justice Anthony M. Kennedy said he was concerned about changing a conception of marriage that has persisted for millennia. Later, though, he expressed qualms about excluding gay families from what he called a noble and sacred institution. Chief Justice John C. Roberts Jr. worried about shutting down a fast-moving societal debate.

In the initial questioning, which lasted about 90 minutes, Justice Samuel A. Alito Jr. asked whether groups of four people must be allowed to marry, while Justice Antonin Scalia said a ruling for same-sex marriage might require some members of the clergy to perform the ceremonies, even if they violate their religious teaching.

Justice Stephen G. Breyer described marriage as a fundamental liberty. And Justices Ruth Bader Ginsburg and Elena Kagan said that allowing same-sex marriage would do no harm to the marriages of opposite-sex couples.

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LISTEN NOW — Audio from first part of same-sex marriage cases is up and can be heard HERE

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Second part of the argument focused on the questions of whether states must recognize gay marriages legally performed elsewhere.  That argument wrapped up at 12:30 p.m. and concluded today’s session.

Below are few more snippets from the day:

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News

Individuals and groups challenging North Carolina’s 2011 redistricting plan wasted little time today getting their case back before the state Supreme Court, filing papers a short while ago asking for an expedited hearing and decision in time for elections in 2016.

That request followed on the heels of this morning’s U.S. Supreme Court order vacating the state court’s December 2014 decision upholding the plan and calling for a new hearing in light of the high court’s late March decision in a similar Alabama case.

In today’s filing, the plan’s challengers pointed out five ways in which the state Supreme Court decision erred, given the analysis called for by the justices in the Alabama case:

First, the United States Supreme Court’s Alabama decision establishes that the trial court here correctly concluded that race was the dominant factor used to draw the challenged Senate, House, and Congressional Districts. Indeed, under the Supreme Court’s decision, there is no reasonable basis to conclude that race was not the predominant factor used by the North Carolina General Assembly in drawing the challenged districts.

Second, the decision establishes that North Carolina’s Section 5 justification for its race-based actions is invalid, unfounded, and unsupported by the text of Section 5.

Third, the decision establishes that even if North Carolina had a compelling Section 5 justification for its race-based actions, it failed to narrowly tailor the challenged districts to conform to any such justification.

Fourth, the decision and the remand in these cases strongly suggest that North Carolina’s Section 2 justification for its race-based actions is also invalid and unfounded and unsupported by the text of Section 2.

Fifth, the decision and the remand strongly suggest that even if North Carolina had a compelling Section 2 justification for its race-based actions, it failed to narrowly tailor the challenged districts to conform to any such justification.

They are asking the court to set a schedule that envisions an initial determination whether the case has to go back to the three-judge trial panel for additional findings and then further briefing if necessary at the Supreme Court to be completed by the end of June, with argument to follow as soon as possible thereafter.

To that end, it’s worth noting that the state’s highest court has already scheduled an unusual late June argument day to hear an expedited appeal of the Governor’s lawsuit against the legislative leaders concerning commission appointments.

Click here to read the challenger’s motion in full.