Althouse Defends CJ Roberts, Criticizes My Slate Piece on McCutcheon

She concludes about my Slate piece:

Having set out those 3 subtle/dramatic things, Hasen tells his readers not to be “fooled by Roberts’ supposed restraint.” I don’t think Roberts is trying to “fool” anyone, and the modest framing of the opinion is real: Roberts did not elevate the level of scrutiny beyond “exacting” and he did not recognize a government interest beyond preventing bribery and quid pro quo corruption.

And I don’t think Roberts purports to take what is traditionally called a position of judicial restraint, which is: deference to the acts of legislatures, presuming their constitutionality. Roberts is taking the First Amendment seriously and stepping up to the classic judicial role of saying what it means and enforcing constitutional rights. That’s what typically gets called judicial activism by those who like something the legislature has done and who don’t have much respect for the particular version of the constitutional right asserted in a case.

But Hasen, who likes campaign finance reform legislation and doesn’t respect the version of the First Amendment asserted in McCutcheon, found it hard to call Roberts activist. That’s what was so frustrating, so devious: If you’re going to be activist, be activist out in the open where it’s easy for your opponents to attack you as activist. But no, the serpent was subtle….

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