The position of the New York Times editorial board on the two campaign finance cases the Supreme Court will hear is unsurprising; the board has been a big supporter of the constitutionality of campaign finance regulation. But I was struck by this passage in today’s editorial:

[The Vermont case] may be one of the first indications of what kind of chief justice John Roberts will be. At his confirmation hearings, he expressed his commitment to “judicial modesty” and his respect for established precedent. If he is true to those principles, deference to Vermont’s Legislature and respect for Buckley should lead him to resist any entreaties by Justices Scalia and Thomas to dismantle the campaign finance law.

The point about deference to the legislature is fine (though I have my own views on when such deference is appropriate that I’ve written about in detail elsewhere). But to say that respect for Buckley v. Valeo should lead the new Chief to uphold spending limits applied to candidates is ludicrious. If the judge wishes to respect precedent, he should vote to strike down the spending limits. Buckley held that candidate spending limits are unconstitutional, and it would take a change in the law to uphold the Vermont limits. We can debate whether such a change is warranted; but it is incorrect to view Buckley the way the Times editorial does.
The real argument for respecting established precedent, and the real test of the new Chief Justice, as I have written, will come in the Wisconsin case. Suppose (as I think is a reasonable assumption) the new Chief believes limits on spending by corporations and unions in elections violate the First Amendment. Does he vote then to overrule the 1990 Austin case and the 2003 McConnell (McCain-Feingold) case to reach this result?