"The Court’s twistifications have not come to an end; indeed, they are just beginning.... The First Amendment is not abridged for the benefit of the Brotherhood of the Robe."

Writes Justice Scalia, dissenting from the Supreme Courts decision today in Williams-Yulle v. The Florida Bar (PDF), which upheld the Florida Code of Judicial Conduct prohibition on the personal solicitation of campaign contributions by judicial candidates.

It's notable that the Court applies strict scrutiny. (The Florida Bar had argued that the Court should use a lower level of scrutiny that would only require the limit on speech to be “closely drawn” to match a “sufficiently important interest." That test, the Court said, applies to freedom of political association claims, not to free speech claims like the one presented here.)

But Justice Scalia (who was joined by Justice Thomas) objected to the way the Court applied strict scrutiny:

The first sign that mischief is afoot comes when the Court describes Florida’s compelling interest.... [T]he Court today relies on Florida’s invocation of an ill-defined interest in “public confidence in judicial integrity.”... As its opinion unfolds, however, today’s concept of judicial integrity turns out to be “a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.” 12 The Works of Thomas Jefferson 137 (P. Ford ed. 1905). When the Court explains how solicitation undermines confidence in judicial integrity, integrity starts to sound like saintliness. It involves independence from any “‘possible temptation’” that “‘might lead’” the judge, “even unknowingly,” to favor one party....

The Court’s twistifications have not come to an end; indeed, they are just beginning....

The prescription that judges be elected probably springs from the people’s realization that their judges can become their rulers — and (it must be said) from just a deep-down feeling that members of the Third Branch will profit from a hearty helping of humble pie, and from a severe reduction of their great remove from the (ugh!) People....

It is no great mystery what is going on here. The judges of this Court, like the judges of the Supreme Court of Florida who promulgated Canon 7C(1), evidently consider the preservation of public respect for the courts a policy objective of the highest order. So it is — but so too are preventing animal torture, protecting the innocence of children, and honoring valiant soldiers. The Court did not relax the Constitution’s guarantee of freedom of speech when legislatures pursued those goals; it should not relax the guarantee when the Supreme Court of Florida pursues this one. The First Amendment is not abridged for the benefit of the Brotherhood of the Robe.