CHIEF Justice John Roberts did something last week that he hasn’t done in three years: side with the liberal justices against his conservative friends on the Supreme Court. The occasion was a case involving a would-be judge in Florida, Lanell Williams-Yulee, who broke a rule against personally soliciting funds during her unsuccessful bid in 2009 to become a Hillsborough County Judge. For violating Canon 7C(1) of Florida’s Code of Judicial Ethics, Ms Williams-Yulee was slapped with a rebuke and a $1,860.30 fine. She responded with a lawsuit complaining that the ethics rule intruded on her freedom of speech. The majority opinion in Williams-Yulee v Florida Bar, issued on April 29th, opens by noting a distinction between judges and other elected officials: “Judges are not politicians, even when they come to the bench by way of the ballot,” Chief Justice Roberts writes. "A State may assure its people that judges will apply the law without fear or favour—and without having personally asked anyone for money.”

Chief Justice Roberts's rollicking opinion calls on everything from the Magna Carta (“[t]o no one will we sell, to no one will we refuse or delay, right or justice”) to the Girl Scouts: refusing personal solicitations for funds can be difficult, he explains, “as anyone who has encountered a Girl Scout selling cookies outside a grocery store can attest”. He argues that the Florida ethics rule passes “strict scrutiny,” the test the court employs when fundamental rights, such as free speech, are at stake. Avoiding the perception of impropriety in the administration of justice is a compelling state goal, he writes, and banning personal solicitation by judicial candidates is a narrowly tailored strategy for advancing it. When judges “personally ask for money", their integrity may be diminished in the eyes of the public.

This sounds sensible, but the dissenters have a point when they complain that this version of strict scrutiny is rather weak tea. The four conservative justices penned three scathing dissents, including one from Justice Anthony Kennedy noting the “irony” that judicial candidates would have their own First Amendment rights curtailed before they even took the bench to protect those rights for others. Justice Antonin Scalia writes that the majority salvaged the ethics rule only through “sleight of hand” and “twistifications.” Justice Samuel Alito calls the rule “about as narrowly tailored as a burlap bag.” Such rancour directed at the chief from the pens of Mr Roberts’s usual allies is a rare sight.

Despite the drama, the practical implications of the Williams-Yulee decision are frankly modest. Critics of the ballooning costs of campaigns have cheered the ruling (“Campaign finance reformers just won a massive victory at the Supreme Court,” declared Andrew Prokop’s headline at Vox), but its effects will likely be narrow. The ethics rule leaves candidates for judgeships free, as Mr Roberts writes, to “contact potential supporters in person, on the phone, or online. They can promote their campaigns on radio, television, or other media.” And judicial candidates can “direct their campaign committees” to raise money on their behalf.

This reality check leaves Garrett Epps at theAtlantic musing that “there’s less in this than meets the eye.” Judges will continue to be elected in 39 states; judicial candidates will continue to (indirectly) raise money to finance their campaigns; and most campaign regulations for non-judicial candidates for public office will remain verboten. In the majority opinion, the chief justice smirked that "a reader of Justice Kennedy's dissent could be forgiven for concluding that the Court has just upheld a latter-day version of the Alien and Sedition Acts, approving ‘state censorship’ that ‘locks the First Amendment out,’ imposes a ‘gag’ on candidates, and inflicts ‘dead weight’ on a ‘silenced’ public debate.”

For Justice Kennedy, any curb on soliciting funds violates the First Amendment and calls for a jeremiad. In his dissent, Justice Kennedy wrenches out of context a famous line written by Justice Louis Brandeis in Whitney v California, a case from 1925 involving the arrest of a communist party member for advocating terrorism. In Whitney, Justice Brandeis voted to uphold Charlotte Anita Whitney's conviction on the grounds that she was involved in a "conspiracy" to commit "serious crimes." But he wrote that absent actual criminal plans, "assembling with a political party" to discuss dangerous ideas enjoys the protection of the First Amendment. The “remedy” to “falsehood and fallacies” in public discussion is not “enforced silence," Justice Brandeis insisted, but "more speech." For Justice Kennedy a ban on personal solicitation by judicial candidates is essentially enforcing silence.

But it is hard to imagine how "more speech" would improve judicial elections. Mr Kennedy suggests appointing "a panel charged with periodic evaluation of campaign statements, candor, and fairness," which is, by itself, unobjectionable. But while such a panel may help promote "principled, decent, and thoughtful discourse", it cannot break the appearance of quid-pro-quo contributions requested by judicial candidates. Justice Brandeis' oft-quoted "more speech" line thus has nothing to do with Ms Williams-Yulee’s complaint. The Florida ethics rule was not written to prevent untrue, biased or dangerous ideas from flooding the intellectual marketplace. It was designed to build public confidence in the courts as impartial tribunals where judges dole out justice, not favours. As it happens, Florida rules were written in response to a number of outrageous corruption scandals in the 1970s which forced four justices of the state’s highest court to resign. As an amicus brief from the American Bar Association explains, “[s]everal justices attempted to fix cases on behalf of campaign supporters. Another justice resigned after he was filmed on a gambling junket to Las Vegas paid for by a dog track that had a case pending before the high court, while others allowed themselves to be lobbied by a lawyer representing the public utilities industry in a case with major implications to the rate-paying public and even permitted him to ghostwrite the opinion for the Florida Supreme Court.” The Florida Bar had good reason to put up roadblocks between the quid of a campaign donation and the quo of a favourable hearing from a judge whose election was funded by a party to a case.

Keeping the judiciary fair in the eyes of the public is a priority for Chief Justice Roberts. During his confirmation hearings in 2005, he famously compared a judge's job to that of a baseball umpire who calls "balls and strikes" without bias or favouritism. And in the 2012 case challenging the Affordable Care Act, the chief avoided a 5-4 ruling along ideological lines to bring down Barack Obama's signature legislative achievement by crossing over to the liberal side. As he weighs how to vote in this term's most hyped cases—same-sex marriage and another challenge to the ACA, both of which will have a profound and long-lasting impact on millions of Americans' lives—Chief Justice Roberts is clearly considering the legacy of his court. The majority opinion in Williams-Yulee is, more than anything else, a sign of his fervent desire to cultivate the appearance of impartiality in America's judiciary, including and especially its highest court.

Dig deeper:

The trouble with electing judges (August 2014)