Nevada Comm’n on Ethics v. Carrigan , 131 S. Ct. 2343 ( 2011 )


Menu:
  • (Slip Opinion)              OCTOBER TERM, 2010                                       1
    
                                           Syllabus
    
             NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
           being done in connection with this case, at the time the opinion is issued.
           The syllabus constitutes no part of the opinion of the Court but has been
           prepared by the Reporter of Decisions for the convenience of the reader.
           See United States v. Detroit Timber & Lumber Co., 
    200 U.S. 321
    , 337.
    
    
    SUPREME COURT OF THE UNITED STATES
    
                                           Syllabus
    
       NEVADA COMMISSION ON ETHICS v. CARRIGAN
    
             CERTIORARI TO THE SUPREME COURT OF NEVADA
    
           No. 10–568.      Argued April 27, 2011—Decided June 13, 2011
    Nevada’s Ethics in Government Law requires public officials to recuse
     themselves from voting on, or advocating the passage or failure of, “a
     matter with respect to which the independence of judgment of a rea
     sonable person in his situation would be materially affected by,” inter
     alia, “[h]is commitment in a private capacity to the interests of oth
     ers,” Nev. Rev. Stat. §281A.420(2) (2007), which includes a “commit
     ment to a [specified] person,” e.g., a member of the officer’s household
     or the officer’s relative, §281A.420(8)(a)–(d), and “[a]ny other com
     mitment or relationship that is substantially similar” to one enumer
     ated in paragraphs (a)–(d), §281A.420(8)(e).
        Petitioner (Commission) administers and enforces Nevada’s law.
     The Commission investigated respondent Carrigan, an elected local
     official who voted to approve a hotel/casino project proposed by a
     company that used Carrigan’s long-time friend and campaign man
     ager as a paid consultant. The Commission concluded that Carrigan
     had a disqualifying conflict of interest under §281A.420(8)(e)’s catch
     all provision, and censured him for failing to abstain from voting on
     the project. Carrigan sought judicial review, arguing that the Ne
     vada law violated the First Amendment. The State District Court
     denied the petition, but the Nevada Supreme Court reversed, holding
     that voting is protected speech and that §281A.420(8)(e)’s catchall
     definition is unconstitutionally overbroad.
    Held: The Nevada Ethics in Government Law is not unconstitutionally
     overbroad. Pp. 3–11.
        (a) That law prohibits a legislator who has a conflict both from vot
     ing on a proposal and from advocating its passage or failure. If it was
     constitutional to exclude Carrigan from voting, then his exclusion
     from advocating during a legislative session was not unconstitu
     tional, for it was a reasonable time, place, and manner limitation.
    2             NEVADA COMM’N ON ETHICS v. CARRIGAN
    
                                       Syllabus
    
        See Clark v. Community for Creative Non-Violence, 
    468 U.S. 288
    ,
        293. Pp. 3–4.
           (b) “[A] ‘universal and long-established’ tradition of prohibiting cer
        tain conduct creates ‘a strong presumption’ that the prohibition is
        constitutional.’ ” Republican Party of Minn. v. White, 
    536 U.S. 765
    ,
        785. Here, dispositive evidence is provided by “early congressional
        enactments,” which offer “ ‘contemporaneous and weighty evidence of
        the Constitution’s meaning,’ ” Printz v. United States, 
    521 U.S. 898
    ,
        905. Within 15 years of the founding, both the House and the Senate
        adopted recusal rules. Federal conflict-of-interest rules applicable to
        judges also date back to the founding. The notion that Nevada’s
        recusal rules violate legislators’ First Amendment rights is also in
        consistent with long-standing traditions in the States, most of which
        have some type of recusal law. Pp. 4–8.
           (c) Restrictions on legislators’ voting are not restrictions on legisla
        tors’ protected speech. A legislator’s vote is the commitment of his
        apportioned share of the legislature’s power to the passage or defeat
        of a particular proposal. He casts his vote “as trustee for his con
        stituents, not as a prerogative of personal power.” Raines v. Byrd,
        
    521 U.S. 811
    , 821. Moreover, voting is not a symbolic action, and the
        fact that it is the product of a deeply held or highly unpopular per
        sonal belief does not transform it into First Amendment speech.
        Even if the mere vote itself could express depth of belief (which it
        cannot), this Court has rejected the notion that the First Amendment
        confers a right to use governmental mechanics to convey a message.
        See, e.g., Timmons v. Twin Cities Area New Party, 
    520 U.S. 351
    . Doe
        v. Reed, 
    561 U.S.
    ___, distinguished. Pp. 8–10.
           (d) The additional arguments raised in Carrigan’s brief were not
        decided below or raised in his brief in opposition and are thus consid
        ered waived. P. 11.
    
    126 Nev. 28
    , 
    236 P.3d 616
    , reversed and remanded.
    
       SCALIA, J., delivered the opinion of the Court, in which ROBERTS,
    C. J., and KENNEDY, THOMAS, GINSBURG, BREYER, SOTOMAYOR, and KA-
    GAN, JJ., joined. KENNEDY, J., filed a concurring opinion. ALITO, J.,
    filed an opinion concurring in part and concurring in the judgment.
                             Cite as: 564 U. S. ____ (2011)                              1
    
                                  Opinion of the Court
    
          NOTICE: This opinion is subject to formal revision before publication in the
          preliminary print of the United States Reports. Readers are requested to
          notify the Reporter of Decisions, Supreme Court of the United States, Wash
          ington, D. C. 20543, of any typographical or other formal errors, in order
          that corrections may be made before the preliminary print goes to press.
    
    
    SUPREME COURT OF THE UNITED STATES
                                        _________________
    
                                        No. 10–568
                                        _________________
    
    
     NEVADA COMMISSION ON ETHICS, PETITIONER v.
               MICHAEL A. CARRIGAN
        ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 
    
                           NEVADA
    
                                      [June 13, 2011] 
    
    
      JUSTICE SCALIA delivered the opinion of the Court.
      The Nevada Supreme Court invalidated a recusal provi
    sion of the State’s Ethics in Government Law as unconsti
    tutionally overbroad in violation of the First Amendment.
    We consider whether legislators have a personal, First
    Amendment right to vote on any given matter.
                                  I
       Nevada’s Ethics in Government Law provides that “a
    public officer shall not vote upon or advocate the passage
    or failure of, but may otherwise participate in the con
    sideration of, a matter with respect to which the inde
    pendence of judgment of a reasonable person in his
    situation would be materially affected by,” inter alia,
    “[h]is commitment in a private capacity to the interests
    of others.” Nev. Rev. Stat. §281A.420(2) (2007).1 Section
    ——————
      1 At the time of the relevant events in this case, the disclosure and
    
    recusal provisions of the Ethics in Government Law were codified at
    Nev. Rev. Stat. §281.501 (2003). They were recodified without relevant
    change in 2007 at §281A.420, and all citations are to that version. The
    Nevada Legislature further amended the statute in 2009, see Nev.
    Stats., ch. 257, §9.5, p. 1057, but those changes are not relevant here.
    2        NEVADA COMM’N ON ETHICS v. CARRIGAN
    
                         Opinion of the Court
    
    281A.420(8)(a)–(d) of the law defines the term “commit
    ment in a private capacity to the interests of others” to
    mean a “commitment to a person” who is a member of the
    officer’s household; is related by blood, adoption, or mar
    riage to the officer; employs the officer or a member of his
    household; or has a substantial and continuing business
    relationship with the officer. Paragraph (e) of the same
    subsection adds a catchall to that definition: “[a]ny other
    commitment or relationship that is substantially similar”
    to one of those listed in paragraphs (a)–(d).
       The Ethics in Government Law is administered and
    enforced by the petitioner in this litigation, the Nevada
    Commission on Ethics. In 2005, the Commission initiated
    an investigation of Michael Carrigan, an elected member
    of the City Council of Sparks, Nevada, in response to
    complaints that Carrigan had violated §281A.420(2) by
    voting to approve an application for a hotel/casino project
    known as the “Lazy 8.” Carrigan, the complaints asserted,
    had a disabling conflict in the matter because his long
    time friend and campaign manager, Carlos Vasquez,
    worked as a paid consultant for the Red Hawk Land Com
    pany, which had proposed the Lazy 8 project and would
    benefit from its approval.
       Upon completion of its investigation, the Commission
    concluded that Carrigan had a disqualifying conflict of
    interest under §281A.420(8)(e)’s catchall provision because
    his relationship with Vasquez was “substantially similar”
    to the prohibited relationships listed in §281A.420(8)(a)–
    (d). Its written decision censured Carrigan for failing to
    abstain from voting on the Lazy 8 matter, but did not
    impose a civil penalty because his violation was not will
    ful, see §281A.480. (Before the hearing, Carrigan had
    consulted the Sparks city attorney, who advised him that
    disclosing his relationship with Vasquez before voting on
    the Lazy 8 project, which he did, would satisfy his obliga
    tions under the Ethics in Government Law.)
                     Cite as: 564 U. S. ____ (2011)            3
    
                         Opinion of the Court
    
      Carrigan filed a petition for judicial review in the First
    Judicial District Court of the State of Nevada, arguing
    that the provisions of the Ethics in Government Law that
    he was found to have violated were unconstitutional under
    the First Amendment. The District Court denied the
    petition, but a divided Nevada Supreme Court reversed.
    The majority held that voting was protected by the First
    Amendment, and, applying strict scrutiny, found that
    §281A.420(8)(e)’s catchall definition was unconstitution
    ally overbroad. 
    126 Nev. 28
    , ___–___, 
    236 P.3d 616
    , 621–
    624 (2010).
      We granted certiorari, 562 U. S. ___ (2011).
                                  II
      The First Amendment prohibits laws “abridging the
    freedom of speech,” which, “ ‘as a general matter . . . means
    that government has no power to restrict expression be
    cause of its message, its ideas, its subject matter, or its
    content.’ ” Ashcroft v. American Civil Liberties Union, 
    535 U.S. 564
    , 573 (2002) (quoting Bolger v. Youngs Drug
    Products Corp., 
    463 U.S. 60
    , 65 (1983)). But the Amend
    ment has no application when what is restricted is not
    protected speech. See, e.g., Roth v. United States, 
    354 U.S. 476
    , 483 (1957) (obscenity not protected speech). The
    Nevada Supreme Court thought a legislator’s vote to be
    protected speech because voting “is a core legislative
    function.” 126 Nev., at ___, 
    236 P. 3d
    , at 621 (internal
    quotation marks omitted).
      We disagree, for the same reason. But before discussing
    that issue, we must address a preliminary detail: The
    challenged law not only prohibits the legislator who has a
    conflict from voting on the proposal in question, but also
    forbids him to “advocate the passage or failure” of the
    proposal—evidently meaning advocating its passage or
    failure during the legislative debate. Neither Carrigan
    nor any of his amici contend that the prohibition on advo
    4        NEVADA COMM’N ON ETHICS v. CARRIGAN
    
                         Opinion of the Court
    
    cating can be unconstitutional if the prohibition on voting
    is not. And with good reason. Legislative sessions would
    become massive town-hall meetings if those who had a
    right to speak were not limited to those who had a right
    to vote. If Carrigan was constitutionally excluded from
    voting, his exclusion from “advocat[ing]” at the legislative
    session was a reasonable time, place and manner limita
    tion. See Clark v. Community for Creative Non-Violence,
    
    468 U.S. 288
    , 293 (1984).
                                  III
       “[A] universal and long-established tradition of prohibit
    ing certain conduct creates a strong presumption that the
    prohibition is constitutional: Principles of liberty funda
    mental enough to have been embodied within constitu
    tional guarantees are not readily erased from the Nation’s
    consciousness.” Republican Party of Minn. v. White, 
    536 U.S. 765
    , 785 (2002) (internal quotation marks omitted).
    Laws punishing libel and obscenity are not thought to
    violate “the freedom of speech” to which the First Amend
    ment refers because such laws existed in 1791 and have
    been in place ever since. The same is true of legislative
    recusal rules. The Nevada Supreme Court and Carrigan
    have not cited a single decision invalidating a generally
    applicable conflict-of-interest recusal rule—and such rules
    have been commonplace for over 200 years.
       “[E]arly congressional enactments ‘provid[e] contempo
    raneous and weighty evidence of the Constitution’s mean
    ing,’ ” Printz v. United States, 
    521 U.S. 898
    , 905 (1997)
    (quoting Bowsher v. Synar, 
    478 U.S. 714
    , 723–724 (1986)).
    That evidence is dispositive here. Within 15 years of the
    founding, both the House of Representatives and the
    Senate adopted recusal rules. The House rule—to which
    no one is recorded as having objected, on constitutional or
    other grounds, see D. Currie, The Constitution in Con
    gress: The Federalist Period 1789–1801, p. 10 (1997)—was
                       Cite as: 564 U. S. ____ (2011)                5
    
                           Opinion of the Court
    
    adopted within a week of that chamber’s first achieving a
    quorum.2 The rule read: “No member shall vote on any
    question, in the event of which he is immediately and
    particularly interested.” 1 Annals of Cong. 99 (1789).
    Members of the House would have been subject to this
    recusal rule when they voted to submit the First Amend
    ment for ratification; their failure to note any inconsis
    tency between the two suggests that there was none.
      The first Senate rules did not include a recusal require
    ment, but Thomas Jefferson adopted one when he was
    President of the Senate. His rule provided as follows:
          “Where the private interests of a member are con
        cerned in a bill or question, he is to withdraw. And
        where such an interest has appeared, his voice [is]
        disallowed, even after a division. In a case so contrary
        not only to the laws of decency, but to the fundamen
        tal principles of the social compact, which denies to
        any man to be a judge in his own case, it is for the
        honor of the house that this rule, of immemorial ob
        servance, should be strictly adhered to.” A Manual of
        Parliamentary Practice for the Use of the Senate of
        the United States 31 (1801).
    Contemporaneous treatises on parliamentary procedure
    track parts of Jefferson’s formulation. See, e.g., A. Clark,
    Manual, Compiled and Prepared for the Use of the [New
    York] Assembly 99 (1816); L. Cushing, Manual of Parlia
    mentary Practice, Rules of Proceeding and Debate in
    Deliberative Assemblies 30 (7th ed. 1854).
       Federal conflict-of-interest rules applicable to judges
    also date back to the founding. In 1792, Congress passed
    a law requiring district court judges to recuse themselves
    if they had a personal interest in a suit or had been coun
    ——————
      2 The House first achieved a quorum on April 1, 1789, 1 Annals of
    
    Cong. 96, and it adopted rules governing its procedures on April 7,
    1789, see id., at 98–99.
    6           NEVADA COMM’N ON ETHICS v. CARRIGAN
    
                              Opinion of the Court
    
    sel to a party appearing before them. Act of May 8, 1792,
    ch. 36, §11, 1 Stat. 278–279. In 1821, Congress expanded
    these bases for recusal to include situations in which “the
    judge . . . is so related to, or connected with, either party,
    as to render it improper for him, in his opinion, to sit on
    the trial of such suit.” Act of Mar. 3, 1821, ch. 51, 3 Stat.
    643. The statute was again expanded in 1911, to make
    any “personal bias or prejudice” a basis for recusal. Act of
    Mar. 3, 1911, §21, 36 Stat. 1090. The current version,
    which retains much of the 1911 version’s language, is
    codified at 
    28 U.S. C
    . §144. See generally Liteky v. United
    States, 
    510 U.S. 540
    , 544 (1994); Frank, Disqualification
    of Judges, 56 Yale L. J. 605, 626–630 (1947) (hereinafter
    Frank). There are of course differences between a legisla
    tor’s vote and a judge’s, and thus between legislative and
    judicial recusal rules; nevertheless, there do not appear to
    have been any serious challenges to judicial recusal stat
    utes as having unconstitutionally restricted judges’ First
    Amendment rights.3
      The Nevada Supreme Court’s belief that recusal rules
    violate legislators’ First Amendment rights is also incon
    sistent with long-standing traditions in the States. A
    number of States, by common-law rule, have long required
    recusal of public officials with a conflict. See, e.g., In
    re Nashua, 12 N. H. 425, 430 (1841) (“If one of the com
    missioners be interested, he shall not serve”); Commis
    sioners’ Court v. Tarver, 
    25 Ala. 480
    , 481 (1854) (“If any
    member . . . has a peculiar, personal interest, such mem
    ber would be disqualified”); Stubbs v. Florida State Fi
    nance Co., 
    118 Fla. 450
    , 451, 
    159 So. 527
    , 528 (1935) (“[A]
    public official cannot legally participate in his official
    ——————
      3 We have held that restrictions on judges’ speech during elections are
    
    a different matter. See Republican Party of Minn. v. White, 
    536 U.S. 765
    , 788 (2002) (holding that it violated the First Amendment to
    prohibit announcement of views on disputed legal and political issues
    by candidates for judicial election).
                          Cite as: 564 U. S. ____ (2011)                     7
    
                              Opinion of the Court
    
    capacity in the decision of a question in which he is per
    sonally and adversely interested”).4 Today, virtually every
    State has enacted some type of recusal law, many of
    which, not unlike Nevada’s, require public officials to
    abstain from voting on all matters presenting a conflict
    of interest. See National Conference of State Legisla
    tures, Voting Recusal Provisions (2009), online at http://
    www.ncsl.org/?TabID=15357 (as visited June 9, 2011, and
    available in Clerk of Court’s case file).
       In an attempt to combat this overwhelming evidence of
    constitutional acceptability, Carrigan relies on a handful
    of lower-court cases from the 1980’s and afterwards. See
    Brief for Respondent 25 (citing Clark v. United States, 
    886 F.2d 404
     (CADC 1989); Miller v. Hull, 
    878 F.2d 523
     (CA1
    1989); and Camacho v. Brandon, 
    317 F.3d 153
     (CA2
    2003)). Even if they were relevant, those cases would be
    too little and too late to contradict the long-recognized
    need for legislative recusal. But they are not relevant.
    The first was vacated as moot, see Clark v. United States,
    
    915 F.2d 699
    , 700, 706 (CADC 1990) (en banc), and the
    other two involve retaliation amounting to viewpoint
    discrimination. See Miller, supra, at 533; Camacho, su
    pra, at 160. In the past we have applied heightened scru
    tiny to laws that are viewpoint discriminatory even as to
    speech not protected by the First Amendment, see R. A. V.
    v. St. Paul, 
    505 U.S. 377
    , 383–386 (1992). Carrigan does
    ——————
      4A  number of States enacted early judicial recusal laws as well. See,
    e.g., 1797 Vt. Laws, §23, p. 178 (“[N]o justice of the peace shall take
    cognizance of any cause, where he shall be within either the first,
    second, third, or fourth degree of affinity, or consanguinity, to either of
    the parties, or shall be directly or indirectly interested, in the cause or
    matter to be determined”); 1818 Mass. Laws, §5, p. 632 (“[W]henever
    any Judge of Probate shall be interested in the estate of any person
    deceased, within the county of such Judge, such estate shall be settled
    in the Probate Court of the most ancient next adjoining county . . .”);
    Macon v. Huff, 
    60 Ga. 221
    , 223–226 (1878). See generally Frank 609–
    626.
    8         NEVADA COMM’N ON ETHICS v. CARRIGAN
    
                          Opinion of the Court
    
    not assert that the recusal laws here are viewpoint dis
    criminatory, nor could he: The statute is content-neutral
    and applies equally to all legislators regardless of party or
    position.
                                  IV
       But how can it be that restrictions upon legislators’
    voting are not restrictions upon legislators’ protected
    speech? The answer is that a legislator’s vote is the com
    mitment of his apportioned share of the legislature’s
    power to the passage or defeat of a particular proposal.
    The legislative power thus committed is not personal to
    the legislator but belongs to the people; the legislator has
    no personal right to it. As we said in Raines v. Byrd, 
    521 U.S. 811
    , 821 (1997), when denying Article III standing to
    legislators who claimed that their voting power had been
    diluted by a statute providing for a line-item veto, the
    legislator casts his vote “as trustee for his constituents,
    not as a prerogative of personal power.” In this respect,
    voting by a legislator is different from voting by a citizen.
    While “a voter’s franchise is a personal right,” “[t]he pro
    cedures for voting in legislative assemblies . . . pertain to
    legislators not as individuals but as political representa
    tives executing the legislative process.” Coleman v. Miller,
    
    307 U.S. 433
    , 469–470 (1939) (opinion of Frankfurter, J.).
       Carrigan and JUSTICE ALITO say that legislators often
    “ ‘us[e] their votes to express deeply held and highly un
    popular views, often at great personal or political peril.’ ”
    Post, at 1 (opinion concurring in part and concurring in
    judgment) (quoting Brief for Respondent 23). How do they
    express those deeply held views, one wonders? Do ballots
    contain a check-one-of-the-boxes attachment that will be
    displayed to the public, reading something like “( ) I have
    a deeply held view about this; ( ) this is probably desirable;
    ( ) this is the least of the available evils; ( ) my personal
    view is the other way, but my constituents want this; ( )
                     Cite as: 564 U. S. ____ (2011)            9
    
                         Opinion of the Court
    
    my personal view is the other way, but my big contributors
    want this; ( ) I don’t have the slightest idea what this
    legislation does, but on my way in to vote the party Whip
    said vote ‘aye’ ”? There are, to be sure, instances where
    action conveys a symbolic meaning—such as the burning
    of a flag to convey disagreement with a country’s policies,
    see Texas v. Johnson, 
    491 U.S. 397
    , 406 (1989). But the
    act of voting symbolizes nothing. It discloses, to be sure,
    that the legislator wishes (for whatever reason) that the
    proposition on the floor be adopted, just as a physical
    assault discloses that the attacker dislikes the victim. But
    neither the one nor the other is an act of communication.
    Cf. Rumsfeld v. Forum for Academic and Institutional
    Rights, Inc., 
    547 U.S. 47
    , 66 (2006) (expressive value was
    “not created by the conduct itself but by the speech that
    accompanies it”).
       Moreover, the fact that a nonsymbolic act is the product
    of deeply held personal belief—even if the actor would like
    it to convey his deeply held personal belief—does not
    transform action into First Amendment speech. Nor does
    the fact that action may have social consequences—such
    as the unpopularity that cost John Quincy Adams his
    Senate seat resulting from his vote in favor of the Em
    bargo Act of 1807, see post, at 1. However unpopular
    Adams’ vote may have made him, and however deeply
    Adams felt that his vote was the right thing to do, the act
    of voting was still nonsymbolic conduct engaged in for an
    independent governmental purpose.
       Even if it were true that the vote itself could “express
    deeply held and highly unpopular views,” the argument
    would still miss the mark. This Court has rejected the
    notion that the First Amendment confers a right to use
    governmental mechanics to convey a message. For exam
    ple, in Timmons v. Twin Cities Area New Party, 
    520 U.S. 351
     (1997), we upheld a State’s prohibition on multiple
    party or “fusion” candidates for elected office against a
    10            NEVADA COMM’N ON ETHICS v. CARRIGAN
    
                              Opinion of the Court
    
    First Amendment challenge. We admitted that a State’s
    ban on a person’s appearing on the ballot as the candidate
    of more than one party might prevent a party from “using
    the ballot to communicate to the public it supports a par
    ticular candidate who is already another party’s candi
    date,” id., at 362; but we nonetheless were “unpersuaded
    . . . by the party’s contention that it has a right to use the
    ballot itself to send a particularized message.” Id., at 362–
    363; see also Burdick v. Takushi, 
    504 U.S. 428
    , 438
    (1992). In like manner, a legislator has no right to use
    official powers for expressive purposes.
        Carrigan and JUSTICE ALITO also cite Doe v. Reed, 
    561 U.S.
    ___ (2010), as establishing “the expressive character
    of voting.” Post, at 2; see also Brief for Respondent 26.
    But Reed did no such thing. That case held only that a
    citizen’s signing of a petition—“ ‘core political speech,’ ”
    Meyer v. Grant, 
    486 U.S. 414
    , 421–422 (1988)—was not
    deprived of its protected status simply because, under
    state law, a petition that garnered a sufficient number of
    signatures would suspend the state law to which it per
    tained, pending a referendum. See Reed, 561 U. S., at ___
    (slip op., at 6); id., at ___ (slip op., at 3) (opinion of SCALIA,
    J.). It is one thing to say that an inherently expressive act
    remains so despite its having governmental effect, but it is
    altogether another thing to say that a governmental act
    becomes expressive simply because the governmental
    actor wishes it to be so. We have never said the latter is
    true.5
    ——————
      5 JUSTICE  ALITO reasons as follows: (1) If an ordinary citizen were to
    vote in a straw poll on an issue pending before a legislative body, that
    vote would be speech; (2) if a member of the legislative body were to do
    the same, it would be no less expressive; therefore (3) the legislator’s
    actual vote must also be expressive. This conclusion does not follow. A
    legislator voting on a bill is not fairly analogized to one simply discuss
    ing that bill or expressing an opinion for or against it. The former is
    performing a governmental act as a representative of his constituents,
                         Cite as: 564 U. S. ____ (2011) 
                    11
    
                             Opinion of the Court 
    
    
                                 V
    
      Carrigan raises two additional arguments in his brief:
    that Nevada’s catchall provision unconstitutionally bur
    dens the right of association of officials and supporters,
    and that the provision is unconstitutionally vague. What
    ever the merits of these arguments, we have no occasion to
    consider them. Neither was decided below: The Nevada
    Supreme Court made no mention of the former argument
    and said that it need not address the latter given its reso
    lution of the overbreadth challenge, 
    126 Nev.
    ___, n. 4, 
    236 P. 3d
    , at 619, n. 4. Nor was either argument raised in
    Carrigan’s brief in opposition to the petition for writ of
    certiorari. Arguments thus omitted are normally consid
    ered waived, see this Court’s Rule 15.2; Baldwin v. Reese,
    
    541 U.S. 27
    , 34 (2004), and we find no reason to sidestep
    that Rule here.
                            *    *  *
      The judgment of the Nevada Supreme Court is reversed,
    and the case is remanded for further proceedings not
    inconsistent with this opinion.
                                           It is so ordered.
    
    
    
    
    —————— 
    
    see supra, at 8; only the latter is exercising personal First Amendment 
    
    rights. 
    
                     Cite as: 564 U. S. ____ (2011)            1
    
                        KENNEDY, J., concurring
    
    SUPREME COURT OF THE UNITED STATES
                             _________________
    
                              No. 10–568
                             _________________
    
    
     NEVADA COMMISSION ON ETHICS, PETITIONER v.
               MICHAEL A. CARRIGAN
        ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 
    
                           NEVADA
    
                            [June 13, 2011] 
    
    
       JUSTICE KENNEDY, concurring.
       For the reasons the Court explains, the act of casting an
    official vote is not itself protected by the Speech Clause of
    the First Amendment; and I join the Court’s opinion.
       It does seem appropriate to note that the opinion does
    not, and on this record should not, consider a free speech
    contention that would have presented issues of consider
    able import, were it to have been a proper part of the case.
    Neither in the submissions of the parties to this Court
    defining the issues presented, nor in the opinion of the
    Nevada Supreme Court, were the Nevada statutory provi
    sions here at issue challenged or considered from the
    standpoint of burdens they impose on the First Amend
    ment speech rights of legislators and constituents apart
    from an asserted right to engage in the act of casting a
    vote.
       The statute may well impose substantial burdens on
    what undoubtedly is speech. The democratic process
    presumes a constant interchange of voices. Quite apart
    from the act of voting, speech takes place both in the
    election process and during the routine course of commu
    nications between and among legislators, candidates,
    citizens, groups active in the political process, the press,
    and the public at large. This speech and expression often
    finds powerful form in groups and associations with whom
    2        NEVADA COMM’N ON ETHICS v. CARRIGAN
    
                       KENNEDY, J., concurring
    
    a legislator or candidate has long and close ties, ties made
    all the stronger by shared outlook and civic purpose. The
    process is so intricate a part of communication in a democ
    racy that it is difficult to describe in summary form, lest
    its fundamental character be understated. It may suffice,
    however, to note just a few examples.
       Assume a citizen has strong and carefully considered
    positions on family life; the environment; economic princi
    ples; criminal justice; religious values; or the rights of
    persons. Assume, too, that based on those beliefs, he or
    she has personal ties with others who share those views.
    The occasion may arise when, to promote and protect
    these beliefs, close friends and associates, perhaps in
    concert with organized groups with whom the citizen also
    has close ties, urge the citizen to run for office. These
    persons and entities may offer strong support in an elec
    tion campaign, support which itself can be expression in
    its classic form. The question then arises what application
    the Nevada statute has if a legislator who was elected
    with that support were to vote upon legislation central to
    the shared cause, or, for that matter, any other cause
    supported by those friends and affiliates.
       As the Court notes, Nev. Rev. Stat. §281A.420(2) (2007)
    provides:
        “[A] public officer shall not vote upon or advocate the
        passage or failure of, but may otherwise participate in
        the consideration of, a matter with respect to which
        the independence of judgment of a reasonable person
        in his situation would be materially affected by . . .
        [h]is commitment in a private capacity to the interests
        of others.”
    There is, in my view, a serious concern that the statute
    imposes burdens on the communications and expressions
    just discussed. The immediate response might be that the
    statute does not apply because its application is confined
                     Cite as: 564 U. S. ____ (2011)            3
    
                        KENNEDY, J., concurring
    
    to the legislator’s “commitment in a private capacity to the
    interests of others.” That proposition may be a debatable
    one. At least without the benefit of further submissions or
    argument or explanation, it seems that one fair interpre
    tation, if not the necessary one, is that the statute could
    apply to a legislator whose personal life is tied to the
    longstanding, close friendships he or she has forged in the
    common cause now at stake.
       The application of the statute’s language to the case just
    supposed, and to any number of variations on the supposi
    tion, is not apparent. And if the statute imposes unjusti
    fied burdens on speech or association protected by the
    First Amendment, or if it operates to chill or suppress the
    exercise of those freedoms by reason of vague terms or
    overbroad coverage, it is invalid. See United States v.
    Williams, 
    553 U.S. 285
    , 292–293, 304 (2008). A statute of
    this sort is an invitation to selective enforcement; and
    even if enforcement is undertaken in good faith, the dan
    gers of suppression of particular speech or associational
    ties may well be too significant to be accepted. See Gentile
    v. State Bar of Nev., 
    501 U.S. 1030
    , 1051 (1991).
       The interests here at issue are at the heart of the First
    Amendment. “[T]he First Amendment has its fullest and
    most urgent application to speech uttered during a cam
    paign for political office.” Eu v. San Francisco County
    Democratic Central Comm., 
    489 U.S. 214
    , 223 (1989)
    (internal quotation marks omitted). And the Court has
    made it clear that “the right of citizens to band together in
    promoting among the electorate candidates who espouse
    their political views” is among the First Amendment’s
    most pressing concerns. Clingman v. Beaver, 
    544 U.S. 581
    , 586 (2005) (internal quotation marks omitted).
       The constitutionality of a law prohibiting a legislative
    or executive official from voting on matters advanced by or
    associated with a political supporter is therefore a most
    serious matter from the standpoint of the logical and
    4         NEVADA COMM’N ON ETHICS v. CARRIGAN
    
                        KENNEDY, J., concurring
    
    inevitable burden on speech and association that preceded
    the vote. The restriction may impose a significant burden
    on activities protected by the First Amendment. As a
    general matter, citizens voice their support and lend their
    aid because they wish to confer the powers of public office
    on those whose positions correspond with their own. That
    dynamic, moreover, links the principles of participation
    and representation at the heart of our democratic govern
    ment. Just as candidates announce positions in exchange
    for citizens’ votes, Brown v. Hartlage, 
    456 U.S. 45
    , 55–56
    (1982), so too citizens offer endorsements, advertise their
    views, and assist political campaigns based upon bonds of
    common purpose. These are the mechanisms that sustain
    representative democracy. See ibid.
       The Court has held that due process may require
    recusal in the context of certain judicial determinations,
    see Caperton v. A. T. Massey Coal Co., 556 U. S. ___
    (2009); but as the foregoing indicates, it is not at all clear
    that a statute of this breadth can be enacted to extend
    principles of judicial impartiality to a quite different con
    text. The differences between the role of political bodies in
    formulating and enforcing public policy, on the one hand,
    and the role of courts in adjudicating individual disputes
    according to law, on the other, see ante, at 6, may call for a
    different understanding of the responsibilities attendant
    upon holders of those respective offices and of the legiti
    mate restrictions that may be imposed upon them.
       For these reasons, the possibility that Carrigan was
    censured because he was thought to be beholden to a
    person who helped him win an election raises constitu
    tional concerns of the first magnitude.
       As the Court observes, however, the question whether
    Nevada’s recusal statute was applied in a manner that
    burdens the First Amendment freedoms discussed above is
    not presented in this case. Ante, at 10.
                     Cite as: 564 U. S. ____ (2011)            1
    
                          Opinion of ALITO, J.
    
    SUPREME COURT OF THE UNITED STATES
                             _________________
    
                              No. 10–568
                             _________________
    
    
     NEVADA COMMISSION ON ETHICS, PETITIONER v.
               MICHAEL A. CARRIGAN
        ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 
    
                           NEVADA
    
                            [June 13, 2011] 
    
    
      JUSTICE ALITO, concurring in part and concurring in the
    judgment.
      I concur in the judgment, but I do not agree with the
    opinion of the Court insofar as it suggests that restrictions
    upon legislators’ voting are not restrictions upon legisla
    tors’ speech. Ante, at 8. As respondent notes, “[o]ur his
    tory is rich with tales of legislators using their votes to
    express deeply held and highly unpopular views, often at
    great personal or political peril.” Brief for Respondent 23.
    To illustrate this point, respondent notes, among other
    famous incidents, John Quincy Adams’ vote in favor of the
    Embargo Act of 1807, a vote that is said to have cost
    him his Senate seat, and Sam Houston’s vote against the
    Kansas-Nebraska Act, a vote that was deeply unpopular
    in the South. Id., at 23–24 (citing J. Kennedy, Profiles in
    Courage 48, 109 (commemorative ed. 1991)).
      In response to respondent’s argument, the Court sug
    gests that the “expressive value” of such votes is “ ‘not
    created by the conduct itself but by the speech that ac
    companies it.’ ” Ante, at 9. This suggestion, however, is
    surely wrong. If John Quincy Adams and Sam Houston
    had done no more than cast the votes in question, their
    votes would still have spoken loudly and clearly to every
    one who was interested in the bills in question. Voting
    has an expressive component in and of itself. The Court’s
    2             NEVADA COMM’N ON ETHICS v. CARRIGAN
    
                                Opinion of ALITO, J.
    
    strange understanding of the concept of speech is shown
    by its suggestion that the symbolic act of burning the
    American flag is speech but John Quincy Adams calling
    out “yea” on the Embargo Act was not. Ibid.*
      A legislative vote is not speech, the Court tells us, be
    cause the vote may express, not the legislator’s sincere
    personal view, but simply the view that is favored by the
    legislator’s constituents. See ibid. But the same is some
    times true of legislators’ speeches.
      Not only is the Court incorrect in its analysis of the
    expressive character of voting, but the Court’s position is
    inconsistent with our reasoning just last Term in Doe v.
    Reed, 
    561 U.S.
    ___ (2010). There, respondents argued
    that “signing a petition is a legally operative legislative
    act and therefore ‘does not involve any significant expres
    sive element.’ ” Id., at ___ (slip op., at 6) (quoting Brief for
    Respondent Reed 31). But the Court rejected this argu
    ment, stating:
           “It is true that signing a referendum petition may ul
           timately have the legal consequence of requiring the
           secretary of state to place the referendum on the bal
           lot. But we do not see how adding such legal effect to
           an expressive activity somehow deprives that activity
           of its expressive component, taking it outside the
           scope of the First Amendment.” 561 U. S., at ___ (slip
           op., at 6).
       But cf. id., at ___ (SCALIA, J., concurring in judgment)
    (slip op., at 1) (“I doubt whether signing a petition that has
    the effect of suspending a law fits within ‘the freedom of
    speech’ at all”).
       Our reasoning in Reed is applicable here. Just as the
    act of signing a petition is not deprived of its expressive
    character when the signature is given legal consequences,
    ——————
        * See 17 Annals of Congress 50 (1807); see also 15 id., at 201 (1806).
                     Cite as: 564 U. S. ____ (2011)            3
    
                          Opinion of ALITO, J.
    
    the act of voting is not drained of its expressive content
    when the vote has a legal effect. If an ordinary citizen
    casts a vote in a straw poll on an important proposal
    pending before a legislative body, that act indisputably
    constitutes a form of speech. If a member of the legislative
    body chooses to vote in the same straw poll, the legislator’s
    act is no less expressive than that of an ordinary citizen.
    And if the legislator then votes on the measure in the
    legislative chamber, the expressive character of that vote
    is not eliminated simply because it may affect the outcome
    of the legislative process.
       In Part III of its opinion, the Court demonstrates that
    legislative recusal rules were not regarded during the
    founding era as impermissible restrictions on freedom of
    speech. On that basis, I agree that the judgment below
    must be reversed.
    

Document Info

DocketNumber: 10-568

Citation Numbers: 131 S. Ct. 2343, 180 L. Ed. 2d 150, 2011 U.S. LEXIS 4379, 564 U.S. 117

Filed Date: 6/13/2011

Precedential Status: Precedential

Modified Date: 1/4/2018

Authorities (30)

United States v. Detroit Timber & Lumber Co. , 200 U.S. 321 ( 1906 )

Coleman v. Miller , 307 U.S. 433 ( 1939 )

Roth v. United States , 354 U.S. 476 ( 1957 )

Brown v. Hartlage , 456 U.S. 45 ( 1982 )

Bolger v. Youngs Drug Products Corp. , 463 U.S. 60 ( 1983 )

Clark v. Community for Creative Non-Violence , 468 U.S. 288 ( 1984 )

Bowsher v. Synar , 478 U.S. 714 ( 1986 )

Meyer v. Grant , 486 U.S. 414 ( 1988 )

Eu v. San Francisco County Democratic Central Comm. , 489 U.S. 214 ( 1989 )

Texas v. Johnson , 491 U.S. 397 ( 1989 )

Gentile v. State Bar of Nev. , 501 U.S. 1030 ( 1991 )

Burdick v. Takushi , 504 U.S. 428 ( 1992 )

RAV v. St. Paul , 505 U.S. 377 ( 1992 )

Liteky v. United States , 510 U.S. 540 ( 1994 )

Timmons v. Twin Cities Area New Party , 520 U.S. 351 ( 1997 )

Raines v. Byrd , 521 U.S. 811 ( 1997 )

Printz v. United States , 521 U.S. 898 ( 1997 )

Ashcroft v. American Civil Liberties Union , 535 U.S. 564 ( 2002 )

Republican Party of Minn. v. White , 536 U.S. 765 ( 2002 )

Baldwin v. Reese , 541 U.S. 27 ( 2004 )

View All Authorities »

Cited By (22)

In Re: Leon A. Kendall v. ( 2013 )

In the Matter of Lisa M. Aubuchon ( 2013 )

Project Vote v. Kelly , 805 F. Supp. 2d 152 ( 2011 )

Pohlabel v. State , 268 P.3d 1264 ( 2012 )

David Pickup v. Edmund Brown, Jr. ( 2014 )

Chula Vista Citizens for Jobs v. Donna Norris ( 2014 )

Nick Coons v. Jacob Lew ( 2014 )

Nick Coons v. Jacob Lew ( 2014 )

United States v. Brune ( 2014 )

Susan L. French v. Virginia Marine Resources Commission ( 2015 )

United States v. Jordon Simmons ( 2015 )

FTR International v. Bd. of Trustees of the Los Angeles ... ( 2015 )

Mullins v. Masterpiece Cakeshop, Inc , 2015 COA 115 ( 2015 )

Craig v. Masterpiece Cakeshop, Inc , 2015 COA 115 ( 2015 )

Taylor Bell v. Itawamba County School Board ( 2015 )

Craig v. Masterpiece Cakeshop, Inc , 2015 COA 115 ( 2015 )

State v. Terence Johnson ( 2013 )

The Inland Oversight Committee v. Yates CA4/2 ( 2016 )

Perry, Ex Parte James Richard "Rick" ( 2015 )

Perry, Ex Parte James Richard "Rick" ( 2015 )

View All Citing Opinions »