Although federal judges are appointed and not elected, a set of ethical guidelines still governs their behavior. Canon 4 of the Code of Conduct for United States Judges prohibits federal district and appellate court judges from participating in fundraising activities. Justice Kagan asks whether Williams-Yulee’s First Amendment claim would also nullify federal canons.

Pincus tries to distinguish the federal Code of Conduct from Florida’s code, first by arguing that federal judges’ conduct can be regulated because they are government employees, and then—after Justice Kagan and Justice Ginsburg poke holes in that argument—by arguing that Florida’s choice to elect judges leads to the distinction. Justice Kagan points out that Pincus’s attempted distinction supports a more compelling state interest in regulating the fundraising of elected judges.