Nevada Comm'n on Ethics v. Carrigan (10-568)

argument 10-568

Nevada Comm'n on Ethics v. Carrigan

Supreme Court of the United States 57 min 7 speakers 8 chapters transcribed 4 days ago official recording ↗

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Why do neutral recusal laws not infringe on a legislator’s free‑speech rights?

John G. Roberts 0:03

Our last argument of the term is in Case 10568, Nevada Commission on Ethics v. Kerrigan. Mr. Elwood.

Matthew D. Elwood 0:13

Mr. Chief Justice, and may it please the Court, neutral laws requiring official recusal for conflict of interest do not abridge free speech because a legislator's vote, however expressive, is not protected speech. It is rather a legally binding exercise of State power that he wields as an incident of public office. The Nevada Supreme Court concluded that Responda did have a free speech right to vote, and that overrode the Nevada recusal statute. For four reasons, that holding was error. First, since the earliest days of the Republic, recusal rules have been understood to serve important interests unrelated to any views a legislator may want to express by requiring disqualification when circumstances indicate that private interest may have affected his independence of judgment.

Anthony M. Kennedy 0:58

The case is presented to us with briefs that seem to pass in the night. Your emphasis was on whether or not there's a right to vote that's protected under the First Amendment, which is what the Nevada court held, and you're quite correct to address it. But the respondent says, well, this interest has a chilling effect on protected speech. I think we have to reach both parts of that argument. Do you agree with that?

Matthew D. Elwood 1:29

I think that the Court could simply address what the Nevada Supreme Court did and tell it whether it got it right or got it wrong, whether there's a speech interest, and whether that is subject to strict scrutiny or not. But I think that even though that argument I don't think was raised or passed on below, that the Court would have discretion to address that, and I think it would give additional guidance to the Nevada Supreme Court.

Anthony M. Kennedy 1:52

Well, if we say that intermediate scrutiny is the test, even under that test — certainly under that test, that regulation cannot chill speech any more than necessary to fulfill the governmental interest, even under the intermediate standard. And it just seems to me it's difficult for us to just address the standard of proof without deciding the case. Maybe you're right. Maybe we can just answer the the question that was certified and send it back if you prevail. I'm not sure.

Matthew D. Elwood 2:24

I think you're right, Justice Kennedy, that it would provide more guidance to the Nevada Supreme Court. It would be a pretty narrow reversal and remand, assuming that the Court merely reaches speech question. But on the associational question, I think it's important to emphasize from the outset that I think this would have a negligible effect on association because it simply would not apply all that frequently. In order for the recusal statute to apply, two circumstances have to be simultaneously met. First, there has to be a qualifying relationship, which is close and ongoing. And simultaneously, it must have the — it must, on the third party, must have a private, usually pecuniary interest before that same legislator.

Ruth Bader Ginsburg 3:04

As I understand the objection, it's not to recusal rules in general, but it's to the vagueness of this particular one. As I understand it, there's no concern about the specific categories that were mentioned, like family member or employer.

Matthew D. Elwood 3:25

That is correct.

Ruth Bader Ginsburg 3:26

So we're dealing not with can you have recusal rules. Everybody agrees yes, you can. It's the degree of MR.

Matthew D. Elwood 3:36

Well, that was the basis of the holding of the Nevada Supreme Court was that those implicated speech rights, and all of them would be subject to strict scrutiny. So from the outset, we may all be agreed that the Court below applied a fundamentally too high a level of scrutiny.

Anthony M. Kennedy 3:52

The objection to a statute on the grounds that it's vague doesn't go away simply because intermediate scrutiny applies, does it, assuming intermediate

Matthew D. Elwood 4:01

scrutiny? MR. No. But I think that the — our response to the vagueness argument is that respondent concedes that the four categories for members of your household, relatives, employers, and business relationships are clear. He says that on page 2 of his brief. So the question is whether the substantially similar language gums up the works, essentially.